Payetta v. Industrial Comm'n.

Case Date: 06/17/2003
Court: Industrial Commission
Docket No: 2-02-0586WC Rel

No. 2--02--0586WC


IN THE APPELLATE COURT OF ILLINOIS

SECOND DISTRICT

Industrial Commission Division


RICHARD A. PAYETTA, ) Appeal from the Circuit Court
) of Du Page County.
               Appellant, )
)
v. ) No. 01--MR--565
)
THE INDUSTRIAL COMMISSION,  )
et al. )
) Honorable
(Graber Concrete Pipe ) Edward R. Duncan, Jr.
Company, Appellee). ) Judge, Presiding.

JUSTICE GOLDENHERSH delivered the opinion of the court:

Petitioner, Richard Payetta, filed a claim against respondent,Graber Concrete Pipe Co., under the Workers' Compensation Act (Act)(820 ILCS 305/1 et seq. (West 1994)). The Illinois IndustrialCommission (Commission) awarded the wage differential benefitspursuant to section 8(d)(1) of the Act (820 ILCS 305/8(d)(1) (West

1994)) commencing when petitioner found other suitable employment. The circuit court of Du Page County entered judgment on theCommission's decision. On appeal, petitioner raises issues as to(1) whether the wage differential benefits under section 8(d)(1)should commence from the date of his arm amputation, as opposed tothe date petitioner found other suitable employment, and (2)whether respondent is entitled to a credit of $50,437.02 againstthe section 8(d)(1) award. We affirm.

FACTS

On April 23, 1996, petitioner lost his right arm in anaccident while working for respondent. Petitioner filed a claimunder the Workers' Compensation Act (820 ILCS 305/1 et seq. (West1994)). The parties entered into stipulations for arbitrationregarding payments that had been made to petitioner. The partiesstipulated that petitioner had received the sum of $400 for oneweek and $491.59 for a period of 147 weeks following the accident,for a total of $72,663.73. The parties also stipulated thatpetitioner received $442.43 for a period of 114 weeks, for a totalof $50,436.11. Overall, the parties stipulated that a total of$123,099.84 had been paid to petitioner.

At arbitration, petitioner sought wage differential benefitspursuant to section 8(d)(1) (820 ILCS 305/8(d)(1) (West 1994)). Respondent stipulated that petitioner would have been working inhis former employment for 57 hours per week at the rate of $16.43per hour, yielding a weekly wage of $936.51. At arbitration, theparties contested the earning capacity of petitioner and whatcredit, if any, should be due respondent.

The Commission entered a decision finding that petitioner hadbeen temporarily totally disabled for a total of 129 weeks fromApril 24, 1996, through October 14, 1998. The Commission foundthat respondent was entitled to credit of $11,655.76 foroverpayment of temporary total disability (TTD) benefits afterOctober 14, 1998.

The Commission found that respondent had promptly paid topetitioner statutory amputation loss benefits of $442.43 per weekfor a period of 114 weeks after the accident for a total of$50,436.11. The Commission found that respondent was entitled tocredit for these payments as they represented statutory amputationloss benefits. The Commission also stated that respondent shouldhave a credit "on all amounts paid, if any, to or on behalf ofpetitioner on account of said accidental injury."

Pursuant to section 8(d)(1) of the Act, the Commission orderedthat, commencing on October 14, 1998, respondent was obligated topay the sum of $239.73 per week for the duration of petitioner'sdisability. Petitioner estimates that, taking into account the$62,092.78 in credit given to respondent, he will not receive anypayments until October 2003, when the credits are amortized to zeroat the rate of $239.73 per week. The circuit court adopted theCommission's findings. Petitioner appeals.

ANALYSIS

The Commission awarded petitioner wage differential benefitspursuant to section 8(d)(1) of the Act. Section 8(d)(1) reads:

"(d) 1. If, after the accidental injury has beensustained, the employee as a result thereof becomes partiallyincapacitated from pursuing his usual and customary line ofemployment, he shall, except in cases compensated under thespecific schedule set forth in paragraph (e) of this[s]ection, receive compensation for the duration of hisdisability, subject to the limitations as to maximum amountsfixed in paragraph (b) of this [s]ection, equal to 66% ofthe difference between the average amount which he would beable to earn in the full performance of his duties in theoccupation in which he was engaged at the time of the accidentand the average amount which he is earning or is able to earnin some suitable employment or business after the accident." 820 ILCS 305/8(d)(1) (West 1994).

Alternatively, petitioner could have sought a scheduled awardunder section 8(e) for permanent partial loss of an arm. Section8(e)(10) provides that an injured party should receive 235 weeks ofpay for an accident that results in amputation of an arm below theelbow. 820 ILCS 305/8(e)(10) (West 1994). In the event of a lossof a member, a petitioner has the choice of seeking relief undereither section 8(d)(1) or section 8(e)(10), but not both. GeneralElectric Co. v. Industrial Comm'n, 89 Ill. 2d 432, 436, 433 N.E.2d671, 673 (1982). A petitioner is allowed to choose between thescheduled loss and a wage differential on the grounds that theinjured party will choose the award most likely to approximate theearnings loss that the Act attempts to compensate. GeneralElectric Co., 89 Ill. 2d at 438, 433 N.E.2d at 674. As petitionerchose to seek an award for wage differential, he may not claim thescheduled award for loss of his arm.

Petitioner contends that the wage differential payments shouldstart to accrue at the time of the accident when he lost his arm. Petitioner points to the language of section 8(d)(1) that providesthat an injured party should receive compensation for the "durationof his disability." 820 ILCS 305/8(d)(1) (West 1994).

A review of section 8(d)(1), however, reveals that thecommencement of wage differential payments is determined by whenthe petitioner becomes "partially incapacitated." Section 8(d)(1)begins, "If, after the accidental injury has been sustained, theemployee as a result becomes partially incapacitated from pursuinghis usual and customary line of employment, he shall, except incases compensated under the specific schedule set forth inparagraph (e) of this [s]ection, receive compensation for theduration of his disability ***." 820 ILCS 305/8(d)(1) (West 1994). The date when it could first be said that petitioner was "partiallyincapacitated" is the first date of his new employment (October 14,1998).

The fact that petitioner could not be classified as havingbeen partially incapacitated prior to the date of his newemployment is underlined by the fact that, prior to that date, hewas entitled to benefits for being temporarily totallyincapacitated. Both parties entered into arbitration on thestipulation and agreement that petitioner was entitled to benefitsfor temporary and total incapacitation up until that date. Infact, the parties stipulated that respondent had overpaidpetitioner the amount of $11,655.76 in TTD benefits.

Section 8(d)(1) does not allow a party to receive an amountgreater than that he would receive for temporary total disabilityin a given time frame. Section 8(b) of the Act sets forth therates for benefits for temporary total incapacitation. Section8(d)(1) limits recovery to the maximum of this temporary totaldisability as it reads that "compensation for the duration of ***disability, subject to the limitations as to maximum amounts fixedin paragraph (b) of this [s]ection." 820 ILCS 305/8(d)(1) (West1994). As with other provisions in the Act that providecompensation for a loss in wages, the claim for wage differentialcannot be made for a time period when the petitioner has alreadyreceived compensation for temporary total disability.

The limitation of wage differential awards to the maximumamount of TTD is in contrast to compensation under the Act forpartial disability or for the scheduled award for loss of a member. An employee may receive compensation under section 8(d)(2) "inaddition to compensation for temporary total disability underparagraph (b)." 820 ILCS 305/8(d)(2) (West 1994). Furthermore,petitioner had the election of choosing the scheduled award undersection 8(e), which provides:

"[T]he employee shall receive compensation for the periodof temporary total incapacity for work resulting from suchaccidental injury, under subparagraph 1 of paragraph (b) ofthis [s]ection, and shall receive in addition theretocompensation for a further period for the specific loss hereinmentioned ***." 820 ILCS 305/8(e) (West 1994).

The contrast with section 8(d)(1), which limits recovery to themaximum amount fixed in paragraph (b), indicates that recovery forwage differential does not extend into a period where an injuredparty has received the maximum amount of TTD payments.

In effect, petitioner's stance would allow an injured employeeto receive an amount for wage differential over that already beinggiven for temporary total incapacity. This is against the languageof section 8(d)(1) and counterproductive to the stated purpose ofthe Act to approximate loss in earnings. General Electric Co., 89Ill. 2d at 438, 433 N.E.2d at 674.

Petitioner contends that the trial court erred by awardingrespondent a credit of $50,437.02. Petitioner contends thatrespondent failed to prove the nature of the payments and,therefore, is not entitled to any credit. Petitioner argues thatit is common for a worker to receive payments for which arespondent would receive no credit and cites as an example groupmedical payments where an employer does not contribute to the plan. See Village of Streamwood Police Department v. Industrial Comm'n,57 Ill. 2d 345, 312 N.E.2d 239 (1974). This case, however, doesnot involve group medical payments or payment from any plan towhich respondent did not contribute. Traditionally, thedetermination of whether to allow credit is within the discretionof the court entering the workers' compensation award. Gallianettiv. Industrial Comm'n, 315 Ill. App. 3d 721, 733, 734 N.E.2d 482,492 (2000); see 100 C.J.S. Workers' Compensation