Determining ‘Wage Differential’ in Your Illinois Workers’ Compensation Case

meniscus tearA recent case from the First District Appellate Court provides some useful information for anyone injured at work who is seeking to obtain a “wage differential” award as part of a workers’ compensation claim. The appeals court’s ruling made it clear that the proper way to determine a worker’s wage differential goes far beyond merely looking at the worker’s pre-injury wages and comparing them to the worker’s post-injury wages.

The injured employee in this case was Kathy Jenkins, a stationary engineer at Jackson Park Hospital. Jenkins was hurt in an unusual workplace accident. She was trying to get into a locked and unlit office in the hospital. To accomplish this, she climbed into the office through a sliding-glass window. From there, she stepped onto a desk. From the desk, she stepped onto a wheeled desk chair, which rolled away from her. She injured her back, leg, and knee in the fall.

Jenkins tried to return to her job but was unable to continue with full-duty work, due to the pain. Her doctors eventually diagnosed her with a tear in her left meniscus and a contusion in her left ACL. After surgery, Jenkins was permanently and partially disabled, with her doctors only clearing her for sedentary work, and the hospital had no such positions available for her.

The hospital could not find a sedentary job that was comparable to Jenkins’ old engineer position, so it moved her into a public safety officer position. The new position paid less than Jenkins’ old engineer job, but the hospital gave her a salary equal to what she had been making as an engineer. In her workers’ compensation claim, the employee sought a “wage differential” award. The arbitrator who heard the case concluded that she was not entitled to such an award, since the hospital had placed her in a position post-injury that paid her as much as she had been making before the accident. Because of this rate of pay, the employee did not suffer the required “impairment of earnings,” the arbitrator ruled.

The case eventually went to the Appellate Court, which concluded that the arbitrator (and later, the Workers’ Compensation Commission) did not use the proper methodology in determining whether or not Jenkins was entitled to a wage differential award. Wage differential awards, which are established by Section 8(d)(1) of the Workers’ Compensation Act, are intended “to compensate an injured claimant for her reduced earning capacity.” To qualify, you must prove two things:  first, that you are incapacitated from undertaking your normal type of employment, and second, that a difference exists between the average amount you could have expected to earn in your old profession and the average amount you are earning or could expect to earn “in some suitable employment or business after the accident.”

The previous rulings in Jenkins’ case didn’t do that. Those bodies had a legal obligation to look at all of the evidence related to determining if “her disability has resulted in an impairment of earning capacity” instead of doing what they did, which amounted to engaging only in a simple mathematical comparison between Jenkins’ pre-injury and post-injury wages.

If you’ve been injured at work, talk to the diligent Chicago workers’ compensation attorneys at Katz, Friedman, Eagle, Eisenstein, Johnson & Bareck. Our experienced attorneys can guide you through the process of pursuing all of your claims based upon the harm you suffered. To set up a free case evaluation, contact us at 800-444-1525 or through our website.

More Blog Posts:

The Legal Principle of Tolling and Its Impact on Your Illinois Auto Accident Case, Chicago Injury Attorneys Blog, Dec. 7, 2016

Swimming Pools, Child Drownings, and Illinois Standards for Landowner Liability, Chicago Injury Attorneys Blog, Dec. 7, 2016