Yellow Freight Systems v. Illinois Industrial Comm'n

Case Date: 08/04/2004
Court: Industrial Commission
Docket No: 1-03-2572WC Rel  

                NOTICE
Decision filed 08/04/04.  The text of this decision may be changed or corrected prior to the filing of a Petition for Rehearing or the disposition of the same.

NO. 1-03-2572WC
 

IN THE
 

APPELLATE COURT OF ILLINOIS
 

FIRST DISTRICT
 


YELLOW FREIGHT SYSTEMS,

          Petitioner-Appellant,

v.

ILLINOIS INDUSTRIAL
COMMISSION
(Jeffrey Labonte,

          Respondent-Appellee).

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Appeal from the
Circuit Court of
Cook County,

No. 03-L-50673



The Honorable
Joann L. Lanigan,
Judge, presiding.


JUSTICE GOLDENHERSH delivered the opinion of the court:

Claimant, Jeffrey Labonte, sought benefits pursuant to the Workers' Compensation Act (Act)(820 ILCS 305/1 et seq. (West 1996)) for injuries he sustained on April 5, 1998, while employed byYellow Freight System, Inc. (employer). After a hearing, the arbitrator determined that claimantsuffered an aggravation of a pre-existing shoulder condition, which resulted in surgery. The arbitratorawarded claimant temporary total disability benefits (TTD) of $520.07, for a period of 47 1/7 weeksand $305.50 for reasonable and necessary medical expenses The arbitrator found that as a result ofthe accident, claimant was only capable of doing "medium" work due to permanent restrictions of notlifting more than 40 pounds and frequent lifting of up to only 25 pounds. The arbitrator further foundthe shoulder injury resulted in 45% loss of the use of claimant's left arm under section 8(e) of the Actand a back injury resulted in 5% disability of the person as a whole under section 8(d)(2). Thearbitrator refused to award claimant a wage differential award pursuant to section 8(d)(1) of the Act. The employer sought review with the Illinois Industrial Commission (Commission). The issuesraised were the extent of claimant's permanent partial disability and whether claimant was entitled toa wage differential. The Commission agreed with the arbitrator that claimant failed to prove he wasentitled to a wage differential under section 8(d)(1) of the Act. The Commission modified thepermanency award finding claimant permanently partially disabled to the extent of 40% under section8(d)(2) of the Act, and ordered the employer to pay claimant $439.89 per week for a period of 200weeks. The Commission further modified by finding claimant was not entitled to any benefits undersection 8(e) of the Act.

The circuit court of Cook County reversed the Commission's award of permanent partialdisability benefits under section 8(d)(2), finding instead that claimant was entitled to wage differentialbenefits pursuant to section 8(d)(1) of the Act, and remanded to the Commission for a determinationof benefits under section 8(d)(1). In all other respects, the Commission's decision was affirmed. Uponremand, the Commission, with one dissent, determined that claimant was entitled to wage differentialbenefits of $361.34 per week, commencing March 2, 1999, for the duration of his disability. In hisdissent, Commissioner Stevenson adhered to his original decision that an award under Section 8(d)(2),rather than a wage differential, was the appropriate remedy. The circuit court confirmed the majority'sdecision. We affirm.

FACTS

Claimant began working for the employer in 1987. Over the years, he worked as both adockworker and a spotter. The dockworker position required significant overhead lifting, and thespotter position required him to lift trailers off a "pintlehook." In order to start work with theemployer, claimant was required to take a pre-employment physical, which he passed. In 1987,claimant did not have any problems with his neck or back.

In 1990, claimant suffered a cervical injury, which required C-5 and C-6 fusion surgery. Hereceived a workers' compensation settlement for that injury and resumed his regular employment in1991. During 1992 and 1993, claimant experienced soreness in his left shoulder, and in 1994, hereported a back injury. The parties stipulated that claimant suffered a work accident on April 5, 1998,while cranking down dolly legs on a trailer. Claimant attempted to pull a pin two or three times andfelt immediate pain in his left shoulder. Claimant also felt pain in his lower back when he pulled onthe pin. Claimant reported the accident to his supervisor and was treated at the emergency room at Alexian Brothers Hospital.

On July 15, 1998, claimant underwent arthroscopic surgery on his left shoulder, followed byphysical therapy. Dr. Weidman, the surgeon who performed the surgery, ordered permanentrestrictions of no lifting over 40 pounds and frequent lifting of only 25 pounds. Both Dr. Weidmanand Dr. Gnadt, claimant's other treating physician, opined that as a result of the April 5, 1998,accident claimant suffered an aggravation of a pre-existing condition, which resulted in the need forsurgery and permanent restrictions. The employer's examining doctor opined that claimant merelysuffered a shoulder strain on April 5, 1998, and claimant's shoulder problems were chronic in natureand a separate issue.

Claimant, age 43 at the time of the accident, testified that he still experiences shoulder pain,which is particularly painful when he sits too long or reaches overhead. He is no longer able to bowlor play basketball. Claimant testified that he did not graduate from high school. He dropped out afterthe 11th grade and started pumping gas. He then worked in a foundry/machine shop. He also didlandscaping, worked as a switchman for a railroad company, worked as a box handler, worked as afreight handler, and worked as a bartender before accepting his position with the employer. Whenclaimant originally applied for the job with the employer, he wrote on the application that he was ahigh school graduate.

After shoulder surgery and therapy, claimant began working with Tracy Peterlin, a vocationalconsultant retained by the employer. Peterlin advised claimant that a security officer position wouldbe appropriate for him. Peterlin even composed a report advising claimant of several securitycompanies that were hiring and that he should contact those companies about employment. The salaryrange for such a position was $6 to $8 per hour. Claimant testified he made $19.15 per hour as a dockworker and approximately $19.30 as a spotter.

Claimant secured a job with Metro Milwaukee Auto Auction prior to meeting with Peterlin. The job pays $7 per hour. Claimant works 32 hours per week, which is considered full-time, andreceives health benefits. Claimant testified that he accepted the position after he contacted theemployer about the job and was told that it was acceptable and he should take it. Karen Tolbert wasthe person who told claimant it was okay for him to take the job. Tracy Peterlin's report specificallystates that she spoke with Karen Tolbert who said it was fine that claimant accepted the position. Tolbert told Peterlin to keep the file open for 30 days and if claimant was still working, the file couldbe closed.

On cross-examination, claimant acknowledged that he had been living in Franklin, Wisconsin,and commuting to Illinois for five years prior to his work accident. The parties stipulated that claimantwas advised of job openings with the employer in July 1999, some five months after accepting aposition as a security guard. The employer introduced the job descriptions for three positions openin July 1999: Associate Dock Operations Supervisor, Shift Operations Manager, and DockSupervisor. The Shift Operations Manager position required a bachelor's degree or equivalentcombination of education and experience, as well as experience as a front line supervisor. The DockSupervisor position did not require a bachelor's degree, but a bachelor's degree and previoussupervisory experience was considered a plus. It also required the applicant to have the ability to trainand motivate others and have a good knowledge of the bargaining unit agreement. The AssociateDock Operations Supervisor required a high school education or equivalent and one to two years workexperience, along with knowledge of computer applications and proficient keyboard skills.

Claimant testified that he did not have the skills required for the three positions. For example,claimant is unable to type due to a previous injury to his finger. Claimant has not looked for any otherjobs since accepting the position as a security guard. In his 1987 job application, claimant set forththat in addition to working as a bartender, he was also a manager for the same bar from 1983-1987. He also claimed additional managerial experience with a company called Carry Light, Inc.

After hearing all the evidence, the arbitrator awarded TTD benefits and found claimant'sshoulder injury resulted in 45% loss of the use of claimant's left arm under section 8(e) of the Act andthe back injury resulted in 5% disability of the person as a whole under section 8(d)(2). The arbitratorrefused to award a wage differential. The Commission initially agreed that claimant was not entitledto a wage differential. The Commission modified the permanency award, finding claimant permanentlyand partially disabled to the extent of 40% under section 8 (d)(2) of the Act, but refusing to awardbenefits under section 8(e) of the Act. The circuit court reversed the Commission's permanent partialdisability award under section 8(d)(2), finding instead that claimant was entitled to a wage differentialpursuant to section 8(d)(1) of the Act and remanded for a determination of benefits under section8(d)(2). In all other respects, the circuit court confirmed. Upon remand, the Commission determinedthat claimant was entitled to wage differential of $361.34 per week. The circuit court confirmed. Theemployer now appeals.

ANALYSIS

The issue raised on appeal is whether claimant has proven that he is partially incapacitated frompursuing his usual and customary line of employment as required to receive a wage differential awardunder section 8(d)(1) of the Act. The employer maintains that the circuit court ignored the properstandard of review when reviewing the Commission's first decision, and, upon remand, theCommission erred in awarding claimant a wage differential under section 8(d)(1) of the Act. Theemployer contends that the circuit court provided no analysis as to why the Commission's decisiondenying claimant a wage differential was against the manifest weight of the evidence, and the circuitcourt erred in reversing.

A review of the circuit court's original order shows that the circuit court specifically stated thatthe Commission's award of permanent partial disability benefits, rather than a wage differential, wasagainst the manifest weight of the evidence and contrary to the law. The circuit court summarized itsanalysis as follows:

"The [claimant] proved a partial incapacity which prevented him from pursuing his usual andcustomary line of employment which [the employer] conceded was true. He also proved animpairment of earnings. He proved, because of the injury, he could only earn less than whenhe was working for the respondent prior to the injury. Therefore, the [c]ourt finds the decisionof the Commission to award [claimant] permanent partial disability benefits pursuant to