Chicago Workers’ Compensation Lawyers & Illinois Injury Lawyers

Calculating a Wage Differential Award in Illinois

| May 29, 2024 | Worker Compensation |

If you are injured at work and are eligible for an award of workers’ compensation benefits, it is important to make sure that you get every dollar to which you are entitled. If you are receiving a wage differential award, even just a few dollars’ difference in terms of the hourly wage used to calculate your award can make thousands of dollars of difference over the entirety of the award. In one recent case, a worker was able to obtain a reversal of a reduction of his award because one of the wage figures used in the calculation was tied to a job for which the injured worker was not actually qualified, which meant that the differential was too small.

The injured sanitation worker hurt his lower back lifting a bag of compost. After the injury, he had a 20-pound lifting restriction. He also had additional limits related to standing. Ultimately, his municipal employer determined that it could not accommodate the man’s limitations. The worker filed for workers’ compensation.

The man who conducted the worker’s vocational rehabilitation assessment concluded that, given his limitations, the worker could expect to earn somewhere between $8.25 per hour and $13.78 per hour. The lower figure represented Illinois’ minimum wage. The higher figure was the median wage for a school bus driver.

The arbitrator in the worker’s case determined that the worker was entitled to a wage differential award. When you are entitled to a wage differential award of workers’ compensation benefits, you receive 2/3 of the difference between what you were earning in the full performance of your duties in your old job prior to the injury and the average amount you would earn “in some suitable employment or business after the accident.” In this circumstance, that meant subtracting $440 per week ($11 per hour) from $1,311.60 per week ($32.79 per hour) and then multiplying that difference ($871) by 2/3 to arrive at an award of $581 per week.

The Workers’ Compensation Commission lowered that award to just slightly more than $500 per week, concluding that the injured worker was capable of earning $13.78 per week, rather than $11. That decision was eventually overturned by the Appellate Court. This dispute presented a new issue for the Appellate Court to decide:  namely, “the particular method the Commission is required to use to establish ‘the average amount which [the employee] is able to earn in some suitable employment or business after the accident,’ in the event that the employee has not returned to work.”

If an injured worker has already returned to work, the calculation of the wage differential award is simpler. The “claimant must prove his actual earnings for a substantial period after he returns to work,” and the commission uses that information to determine the average weekly wage. When the injured worker hasn’t returned to work, the Commission must look at the evidence and identify “an occupation that the claimant is able and qualified to perform,” and it must use that occupation to determine the average weekly wage.

The calculation by the Commission in this case didn’t meet that requirement. The Commission used $13.78 as the figure, which was the average wage of a school bus driver. The worker, though, had a suspended driver’s license and stated he was not close to getting his license reinstated. This proved that the man wasn’t qualified to be a school bus driver, and there was no evidence he was qualified to work any other job that paid $13.78 per hour, so $13.78 couldn’t possibly be the correct amount to subtract from the worker’s previous wage of $32.79.

When you are pursuing an award of workers’ compensation, even small details can mean big differences for you. That’s why you need experienced counsel who is familiar with these cases and knows how to help you fight for the full award to which you are entitled. The Chicago workers’ compensation attorneys at Katz, Friedman, Eisenstein, Johnson, Bareck & Bertuca have been helping injured workers for many years in their wage differential and other workers’ compensation cases. To set up a free case evaluation, contact us at 312-724-5846 or through our website.

More Blog Posts:

Illinois Appellate Court Reinstates Benefits Award for Injured Auto Worker, Chicago Injury Attorneys Blog, May 22, 2017

Illinois Appellate Court: Injured Roofer Should Have Received a Wage Differential Award, Chicago Injury Attorneys Blog, April 4, 2017

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