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Wage Differential Law in lllinois Workers' Compensation Claims
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Part of our service is to provide education to the public about various aspects of the law. In February of 2006, the Illinois Workers' Compensation Act was amended. As a result, injuries that occur on the job before that date are treated differently than injuries at work after that date. This page summarizes the difference when it comes to an Illinois workers' compensation claim that results in a wage loss because the injured worker has restrictions that prevent him from working in his previous capacity. For guidance on other issues please contact us or visit our main workers' compensation page.
I. Background on Wage Differential Claims:
A. Wage Differential Claims are Based on §8(d)1 of the Act.
Wage differential claims find their statutory authority in Section 8(d)1 of the Act which states as follows:
If, after the accidental injury has been sustained, the employee as a result thereof becomes partially incapacitated from pursuing his usual and customary line of employment, he shall, except in cases compensated under the specific schedule set forth in paragraph (e) of this Section, receive compensation for the duration of his disability, subject to the limitations as to maximum amounts fixed in paragraph (b) of this Section, equal to 66-2/3% of the difference between the average amount which he would be able to earn in the full performance of his duties in the occupation in which he was engaged at the time of the accident and the average amount which he is earning or is able to earn in some suitable employment or business after the accident.
B. Bohannon v. The Industrial Commission, 237 Ill.App.3d 989 (1st Dist. 1992):
It was unclear under the above statutory provision whether there was a maximum wage differential rate applicable to wage differential claims. That question was answered in the case of Bohannon v. The Industrial Commission, 237 Ill.App.3d 989 (1st Dist. 1992). In Bohannon, the First District Appellate Court limited the weekly award of wage differential benefits under Section 8(d)1 of the Act to the maximum Permanent Partial Disability rate, regardless of the amount of wage loss. Therefore, all wage loss awards arising from accidents occurring on or before January 31, 2006 were limited to the statutory maximum PPD rate on the date of accident.
C. Basic Aspects of Wage Differential Claims:
- Wage Differentials Preferred Benefit: The Commission and Courts continue to emphasize that §8(d)1 wage differential awards are the preferred benefit where a petitioner establishes her right to such an award. Because of increased maximum rate for wage differential claims under the Act we predict this trend will continue and the number of wage differential decisions awarded will increase for high wage earning employees.
- Requirements: To establish a wage differential claim, an injured worker must prove (a) a permanent partial incapacity preventing him for pursuing his usual and customary line of work and (b) impairment of earnings. Albrecht v. Industrial Commission, 271 Ill.App.3d 756 (1st Dist. 1995).
- Paid for Life: Wage differentials are paid for the injured workers' life, not his work life.
- Wage differentials are based on the difference between what the injured worker would have earned in the full performance of her occupation at the time of hearing (as opposed to the time of accident) compared to what the injured worker could earn (not necessarily what she is earning) within her permanent restrictions after returning to work after the accident.
- In injured worker cannot receive both 8(d)1 benefits (Man as a Whole) or 8(e) benefits (specific, or scheduled loss ) and §8(d)1 benefits. Freeman United Coal Mining Co. v. Industrial Commission, 283 Ill.App.3d 785 (5th Dist. 1996) and Wellman-Lord, Inc. v. Industrial Commission, 48 Ill.2d 533 (1971).
II MODIFICATION TO ACT
A. Maximum Benefit Increase:
In the New Act, Section 8(b)4 was amended to add the following language:
For injuries occurring on or after February 1, 2006, the maximum weekly benefit under paragraph (d)1 of this Section shall be 100% of the state's average weekly wage.
B. 19(h):
The period for reviewing a §8(d)1 award has also been increased from 30 to 60 months. Unfortunately, a change in wages has been held to not be enough to modify an award. Instead, substantial change in a claimant's medical condition is required.
C. IMPACT OF MODIFICATION
In other words, the maximum wage differential benefit has been significantly increased as part of the amendments to the Workers' Compensation Act. Under prior law, the maximum wage differential rate was equal to the maximum Permanent Partial Disability rate in effect on the date of the accident. For injuries occurring on or after February 1, 2006, the maximum wage differential benefit is 100% of the state average weekly wage. To exemplify the difference, please note that the current maximum PPD rate is $619.97 for injuries between July 1, 2006 and June 30, 2007. The current state average weekly wage is $861.38, designating a difference in weekly benefits for an injured worker whose pre-injury wages qualify for a maximum wage differential claim of $230.43.
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