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Appellate Court Finds the Commission’s Award of PPD Was Against the Manifest Weight of the Evidence and Awards Wage Differential Benefits Instead
In a December 2023 decision, the Appellate Court reversed the Illinois Workers’ Compensation Commission’s (“Commission”) decision in Walsh v. Austin Tyler Construction Co.; finding the manifest weight of the evidence called for wage differential benefits rather than Permanent Partial Disability (“PPD”).
Petitioner was a truck driver for Respondent, responsible for loading and transporting various materials. He began his workday with a pre-trip inspection, which required him to climb in and out of his truck cab multiple times. While loading the truck, he would climb inside the trailer to spray a lubricant. After the load was dumped, he would climb back into the trailer to scrape any remaining asphalt. There were no policies in place prohibiting drivers from going into the trailer.
After exiting his truck on October 18, 2014, Petitioner stepped in a pothole, causing a tendon tear to his left ankle. Two months later, Respondent offered him light duty work. After Petitioner worked for one day, he was laid off. During the layoff, Petitioner continued physical therapy and returned to work in his pre-injury position.
Petitioner eventually underwent surgery for his left ankle on May 19, 2016 and remained off work throughout the remainder of the year. He then underwent a Functional Capacity Evaluation (“FCE”) showing that he met 94.5% of the physical demands of a truck driver and he could perform tasks within the Medium physical demand level, with occasional climbing and avoiding a clutch. The FCE restrictions were adopted and Petitioner was medically authorized to return to work on July 3, 2017.
Petitioner returned to work on November 2, 2017, driving an automatic truck. While he did not have to climb into the trailer, his job duties required him to get in and out of the cab several times per day. He testified that after working that day (November 2, 2017), his left foot pain became worse. On November 3, 2017, his work restrictions were modified light duty only with no climbing or heavy lifting. On November 6, 2017, the work restrictions were modified to “medium duty; no climbing truck or trailer, no clutch and no shoveling over 100 pounds”. Petitioner did not return to work after that.
At trial, Respondent’s superintendent testified that drivers were not required to climb into the trailer to clean, since cleaning was a laborer’s task. Respondent’s President testified that the job description presented reflected Petitioner’s prior position and the position offered to Petitioner to return to work. None of Respondent’s representatives could recall when the policy was created.
Petitioner entered video evidence from April 30, 2018 that showed one of Respondent’s drivers shoveling out the back of a trailer. A current truck driver testified for Respondent, stating that his daily inspection did not require him to climb a ladder. Furthermore, cleaning after every load was not necessary. If needed, the trailer would be cleaned by someone else. The witness testified he would exit the cab of his truck up to 10 times per day.
Petitioner’s treating physician testified that Petitioner could perform the job duties identified in the job description. On the other hand, a vocational rehabilitation counselor testified that Petitioner’s work was 50% labor, categorized as “very heavy” and based on that, he lost access to his pre-injury job (where his earning potential was between $13 and $17 per hour). At the time of trial, Petitioner was working at a gas station for $9 per hour. He experienced swelling of his left ankle every day.
The Arbitrator, relying on a release from Petitioner’s treating physician, found that Petitioner’s restrictions could be accommodated by the Respondent. The Arbitrator entered an award for PPD of 30% loss of use of the foot. The Commission affirmed. The Commission found that the Petitioner sustained an injury to his left foot and awarded him 30% loss of use of the left foot for PPD benefits.
The Circuit Court then reversed and remanded the case to the Commission to consider the issue of a wage differential award. The court found Petitioner was earning less and was precluded from returning to his prior line of employment. In support of the same, the court concluded that Respondent’s job description was fictitious, noting that neither witness could confirm the job description was in effect at the time of employment and could not recall whether it was prepared in anticipation of litigation. The court also relied on Petitioner’s video evidence of drivers working beyond the scope of the written job description.
The Appellate Court agreed with the lower court and relied heavily on Petitioner’s testimony and subjective complaints. The Court noted that the Commission’s finding on credibility was incorrect and that the record supported a finding that Petitioner could not perform his job duties and that he was partially incapacitated from pursuing his usual and customary employment. The Court further noted the long-standing preference for wage differential awards as the proper measure of compensation for future lost earning.
This preference for wage differential awards needs to be considered every step of the way in defending workers’ compensation cases. The fact-specific determination of whether a wage differential or PPD award is best defended by establishing a plan to address each allegation on multiple fronts, which bolsters credibility of the overall defense, especially amongst a reviewing court. Surveillance evidence, expert and lay witnesses, and contrary medical histories should be considered to give additional evidence for the Commission to rely on.