Illinois Appellate Court: Injured Roofer Should Have Received a Wage Differential Award

rooferWhen you’ve been injured on the job, there are several hurdles involved in reaching your proper outcome. Even after you’ve persuaded a workers’ compensation arbitrator that you deserve an award, you have still not cleared all the hurdles. The statutes allow for multiple different types of awards and the difference between them can be substantial. In the case of one roofer injured at work, he successfully appealed a decision that awarded him benefits but denied him the more beneficial “wage differential” award.

The employee in this case was a foreman roofer who had worked for his employer for more than two decades when, in May 2010, he hurt his hip on the job as he was exiting a truck. A June MRI revealed a fracture in his femur. Later tests revealed that, although the fracture had healed, the roofer also had a tear in the labrum in his hip, which required surgery. Even after that surgery, the employee was limited, restricted from lifting more than 50 pounds and from climbing ladders.

Unable to perform his old job, the man ultimately found 20-hour-per-week work as a maintenance worker at a daycare. The former roofer filed a workers’ compensation claim. In that claim, he sought a wage differential award, as allowed under Section 8(d)(1) of the statute. The arbitrator did not, however, grant the worker a wage differential award. The man instead received permanent partial disability for 250 weeks for “50% loss of the person as a whole under section 8(d)(2).”

The worker took his case to the Appellate Court, which gave him the relief he’d sought all along. The statute allows for the awarding of either a wage differential award or “a percentage-of-the-person-as-a-whole award.” The Illinois Supreme Court’s opinions have indicated that the law in this state prefers wage differential awards. Courts should bypass wage differential awards and issue percentage-of-the-person awards only when a worker’s “injuries partially incapacitate him from pursuing the duties of his usual and customary line of employment but do not result in an impairment of earning capacity,” or else when the injury has caused an impairment of earning capacity, but the worker chooses to waive his rights under Section 8(d)(1).

Wage differential awards are appropriate when the worker “is partially incapacitated from pursuing his or her usual and customary line of employment” and “has suffered an impairment in the wages he or she earns or is able to earn.” In this roofer’s case, there was no dispute that the man suffered an injury that prevented him from pursuing his usual employment.

This meant that the sole question was whether that incapacitation had harmed his earning ability. The proof in his case was sufficient to show the existence of such harm. Before the injury, the man made $1,599 per week. After the injury, he made only about $575 per week. Although the man turned down three different jobs that paid roughly $40 per hour, the evidence demonstrated that none of those jobs could accommodate for his medical limitations when it came to lifting, standing for long periods or climbing ladders. Based on that evidence, the worker met the criteria set up in Section 8(d)(1) and should have received a wage differential award.

When you’re injured at work, you need to take prompt action and retain experienced counsel familiar with these issues. The skilled Chicago injury attorneys at Katz, Friedman, Eagle, Eisenstein, Johnson & Bareck have been helping people who suffered on-the-job injuries for many years. To set up a free case evaluation, contact us at 800-444-1525 or through our website.

More Blog Posts:

When a General Contractor Can Be Liable in Illinois to a Subcontractor’s Employee for a Workplace Safety Issue, our common construction site injuries, Chicago Injury Attorneys Blog, Jan. 18, 2017

Four common construction site injuries, Chicago Injury Attorneys Blog, March 22, 2015