Illinois: Wage Differential Award Might Be Possible Even Where Post-Injury Wages Remained the Same

Whether an injured worker has sustained an impairment of earning capacity cannot be determined simply by comparing the worker’s pre- and post-injury income. Other factors, including the nature of the post-injury employment in comparison to wages the claimant could earn in a competitive job market must be considered. Thus, where the claimant’s employer continued to employer her as a safety officer at the same wage she earned as an engineer, the Commission erred in focusing solely on her post-injury wages. For example, wages paid an injured employee out of sympathy, or in consideration of long service with the employer, clearly did not reflect his or her actual earning capacity and should be discounted accordingly. The proper test in finding the loss of earning capacity was to determine as nearly as possible whether in a competitive labor market the claimant, in his or her injured condition, could probably sell his or her services and for how much. Under the circumstances, the claimant might well have been entitled to a wage differential award and the case was remanded.

Thomas A. Robinson, J.D., the Feature National Columnist for the LexisNexis Workers’ Compensation eNewsletter, is the co-author of Larson’s Workers’ Compensation Law (LexisNexis).

LexisNexis Online Subscribers: Citations below link to Lexis Advance. Bracketed citations link to lexis.com.

See Jackson Park Hosp. v. Illinois Workers’ Comp. Comm’n, 2016 IL App (1st) 142431WC; 2016 Ill. App. LEXIS 5 (Jan. 8, 2016) [2016 Ill. App. LEXIS 5 (Jan. 8, 2016)]

See generally Larson’s Workers’ Compensation Law, § 81.05 [81.05]

Source: Larson’s Workers’ Compensation Law, the nation’s leading authority on workers’ compensation law.