                              2017 IL App (1st) 160002WC

                            Opinion filed: February 24, 2017

                                    NO. 1-16-0002WC

                                         IN THE

                          APPELLATE COURT OF ILLINOIS

                                    FIRST DISTRICT

            WORKERS' COMPENSATION COMMISSION DIVISION
________________________________________________________________________

CARL CRITTENDEN,                       )    Appeal from the
                                       )    Circuit Court of
       Appellant,                      )    Cook County.
                                       )
v.                                     )    No. 15-L-50296
                                       )
THE ILLINOIS WORKERS'                  )    Honorable
COMPENSATION COMMISSION, et al.        )    Edmund Ponce De Leon,
(City of Chicago, Appellee).           )    Judge, presiding.
________________________________________________________________________

JUSTICE MOORE delivered the judgment of the court, with opinion.
Presiding Justice Holdridge and Justices Hoffman, Hudson, and Harris concurred in the
judgment and opinion.

                                        OPINION

¶1     The claimant, Carl Crittenden, appeals the judgment of the circuit court of Cook

County, which confirmed the decision of the Illinois Workers' Compensation

Commission (Commission), in favor of the employer, the City of Chicago (City). An

arbitrator awarded the claimant, inter alia, a wage differential pursuant to section 8(d)(1)

of the Workers' Compensation Act (Act) (820 ILCS 305/8(d)(1) (West 2012)), and the

Commission reduced the amount of the wage differential. The circuit court entered a
2017 IL App (1st) 160002WC-U

judgment confirming the Commission's decision. The claimant now appeals the circuit

court's judgment.     For the following reasons, we reverse, vacate the Commission's

decision, and remand this matter to the Commission with directions.

¶2                                     FACTS

¶3       The claimant filed an application for benefits under the Act. 820 ILCS 305/1 et

seq. (West 2012)). An arbitration hearing was conducted on January 4, 2013, wherein the

following evidence was presented. The claimant testified that he was employed by the

City as a sanitation laborer for 27 years. He injured his lower back on April 11, 2008,

while bending over, lifting a bag of compost, and throwing it into the back of a garbage

truck.

¶4       After receiving medical treatment, the claimant saw Dr. Kern Singh on September

3, 2009.     Dr. Singh recommended that the claimant undergo a functional capacity

evaluation (FCE), which was conducted on October 17, 2009. The FCE indicated that

the claimant reported current work limitations of 20 pounds of lifting—with additional

limitations on bending and standing—and such restrictions could not be accommodated

by his employer. The FCE concluded that the claimant could only meet light physical

demands and could not satisfy the physical requirements of his previous job. The FCE

further indicated that the claimant was at maximal functional improvement, and

recommended that he never lift more than 20 pounds on an occasional basis; and up to

approximately 13 pounds on a more frequent basis. Further restrictions included no

pushing or pulling with greater than 40 pounds of force; no frequent or repetitive bending


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or twisting; positional changes as needed to avoid constant standing, walking, or sitting

over a full workday; and no walking for more than 10 minutes.

¶5     The claimant returned to Dr. Singh on March 18, 2010. After conducting an

independent medical re-examination (IME), Dr. Singh concurred that the claimant is able

to perform only light duty work—with a 20 pound lifting restriction—and advised that

the restriction is permanent and the claimant has reached his maximum medical

improvement (MMI). The claimant was subsequently examined by Dr. Samuel Chmell

on March 27, 2010. Dr. Chmell agreed that the claimant had reached his MMI and can

never return to his regular job due to the permanent physical restrictions.

¶6     The claimant testified that he met Steven Blumenthal, who conducted a vocational

rehabilitation assessment on July 27, 2010. Blumenthal did not testify at the hearing, but

his report was submitted by the claimant and admitted into evidence as Petitioner's

Exhibit 7. The claimant testified that he told Blumenthal that he lost his driver's license

following a DUI. Blumenthal's report states that the claimant informed him that he was

arrested for DUI in 1995, that his driver's license was suspended after he received two

speeding tickets, and that he expected to have his license reinstated in December 2010.

The claimant told Blumenthal that he graduated from high school in 1980, but he testified

at the hearing that he had neither graduated nor completed his GED.

¶7     Blumenthal's detailed report contains an array of information, including

background and medical information based on his interview with the claimant as well as

the results of numerous vocational evaluation tests.       Regarding the claimant's work

history, Blumenthal's report states that during the six months immediately preceding his
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injury, he worked part-time cleaning a hospital, where he earned $12 per hour. He also

worked part-time as a customer service supervisor for Target from 1997 to 2003, earning

$11 per hour. The claimant informed Blumenthal that he is currently able to perform

customer service work.

¶8    Blumenthal lists several occupations in his report that he opines may be suitable

for the claimant in his current physical condition.       These include cashier, retail

salesperson, counter and rental clerk, hotel, motel, and resort desk clerk, school bus

driver, and security guard. Blumenthal lists, based on data from the Illinois Department

of Employment Security, the entry hourly wage and the median hourly wage for each

occupation. However, Blumenthal notes as follows with regard to these positions:

      "***it is also very clear that [the claimant] will require specialized job placement

      assistance to identify job settings where his physical abilities can be

      accommodated by the employer. Certain job descriptions [sic] as an unarmed

      security guard in a gated community or industrial guard shack where [the

      claimant] could sit/stand as needed, or as a school bus driver where he could get in

      and out of the bus to change positions would be consistent with his documented

      physical abilities [sic] ([the claimant] stated he enjoyed driving workers around in

      the past). Customer service and cashiering, or even hotel clerk positions would

      require specific accommodations being made by the employer."

¶9    Blumenthal notes that the claimant would be a good candidate for vocational

rehabilitation job placement services. The report concludes that the claimant will earn

$8.25 to $13.78 per hour. Blumenthal notes earlier in his report that $8.25 was the
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current minimum wage in Illinois at the time of the report. The highest median wage

listed in Blumenthal's list of suggested occupations for the claimant is $13.78, the median

wage for a school bus driver.

¶ 10   Julie Bose testified on behalf of the City that she is employed by MedVoc

Rehabilitation as a rehabilitation counselor. She met the claimant on October 3, 2011,

and conducted an initial vocational rehabilitation evaluation.         At the meeting, the

claimant informed Bose that he never graduated from high school nor obtained a GED.

Accordingly, Bose recommended a GED program so the claimant could obtain a high

school diploma and have more job opportunities.           Bose additionally recommended

computer classes and job placement services. She acknowledged that the claimant could

not return to his previous job due to his physical limitations, and noted his desire to return

to work in retail and customer service.

¶ 11   Bose testified that, as part of his program, the claimant was asked to contact a

minimum of 10 prospective employers per week, with half of those in person. Bose

explained that MedVoc sends weekly job leads. She recommended that the claimant

follow up with all of the job leads, and send confirmations to MedVoc as he completed

applications for employment. After the evaluation, Bose had only indirect contact with

the claimant by reviewing his weekly job logs. She indicated that the claimant was not

fully compliant with the program and that his level of compliance decreased over time.

Bose specified that by April 2012, the claimant was not submitting attendance sheets

from the GED classes, nor any documentation on the weekly job leads. Bose further

noted the inconsistencies regarding his alleged contacts with potential employers. For
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example, the claimant stated that he personally went to a certain company on March 23,

2012, but the company had relocated in 2008, making it impossible for the claimant to

have contacted the company at the alleged location.

¶ 12   Bose testified that when she first met with the claimant, he informed her that he

had two recent DUIs and no driver's license. Knowing that employers generally require

reliable transportation, Bose asked the claimant about the possibility of having his

driver's license reinstated. The claimant replied that he could not get his license back any

time soon. To Bose's knowledge, the claimant never obtained his driver's license while

participating in the program.

¶ 13   Bose admitted that none of the job searches submitted to her by the claimant

revealed what the jobs paid and that none of her reports provide the wages of any of the

suggested jobs because employers do not provide such information until after an

interview and sometimes only concurrent with a job offer. The City offered no evidence

of the claimant's post-injury earnings potential.

¶ 14   Following the hearing, the arbitrator found, inter alia, that the claimant sustained

injuries on April 11, 2008, that arose out of and in the course of his employment with the

City. The arbitrator further found that the claimant was partially incapacitated from

pursuing his usual and customary line of employment as a result of the accident, and

accordingly, is entitled to benefits under section 8(d)(1) of the Act (820 ILCS 305/8(d)(1)

(West 2012)). The arbitrator found that the claimant's injuries resulted in a loss of

earnings as provided in section 8(d)(1), and proceeded to calculate the amount of the

claimant's wage differential. In so doing, the arbitrator noted that there is no dispute that
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the claimant would be earning $32.79 per hour if he were able to perform his job with the

employer.     The arbitrator noted that the vocational experts agreed that cashier and

customer service jobs should be targeted for the claimant and that the claimant had

earned $11.00 per hour when he left his part-time job at Target. Additionally, the

arbitrator noted that Blumenthal gave a range of projected earnings of $8.25 to $13.78 per

hour.     The arbitrator then stated that "[t]he arbitrator selects $11.00 per hour as a

reasonable wage. 1" The arbitrator then arrived at a wage differential rate of $581.06 per

week "by multiplying $32.79 by 40 hours to arrive at $1,311.60, subtracting $440.00

($11.00 per hour x 40) to arrive at $871.60, and dividing that by 2/3. 2" Accordingly, the

arbitrator ordered the City to pay the claimant wage differential benefits in the amount of

$581.06 per week from April 9, 2012, through January 4, 2013, and continuing thereafter

for the duration of the claimant's disability.

¶ 15     The City sought review of the arbitrator's decision before the Commission. On

review, the Commission found, inter alia, as follows:



1
    We note that the arbitrator could have selected $11.00 based on the evidence that the

     claimant earned this wage at his past job at Target or by averaging the range suggested

     by Blumenthal ($8.25 + $13.78 = $22.03/2 = $11.015).

2
    We note that rather than dividing $871.60 by 2/3, the arbitrator actually found 2/3 of

     $871.60 by dividing $871.60 by 3, which equals $290.53, and multiplying that by 2,

     which equals $581.06.


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         "Taking the evidence as a whole, the Commission agrees that the [claimant] has

         clearly shown entitlement to a wage differential[;] however[,] his lack of effort in

         obtaining alternative suitable employment leads us to determine that he is capable

         of earning the highest amount that Mr. Blumenthal opined he was capable of

         earning, $13.78 per hour. We note that while the Respondent could have initially

         provided more assistance to the [claimant] than it did, but (sic) this does not

         absolve the [claimant's] responsibility to do his best and give his best effort in

         finding alternative employment. In this case, we do not believe he provided such

         effort, and as a result have determined the proper weekly wage differential should

         be $506.93 per week." 3

¶ 16      The claimant appealed the Commission's decision to the circuit court of Cook

County, which confirmed the Commission's decision on December 17, 2015.                  The

claimant now appeals to this court.

¶ 17                                     ANALYSIS

¶ 18     The sole issue on appeal is whether the circuit court erred by confirming the

Commission's decision regarding the amount of the wage differential award. Initially, we

note the parties disagree regarding the standard of review. The claimant contends that the

3
    In order to arrive at $506.93 per week, the Commission multiplied $32.79 by 40 hours to

     arrive at $1,311.60, subtracting $551.20 (13.78 x 40) to arrive at $760.40, and finding

     2/3 of that number by first dividing by 3 and then multiplying by 2 ($760.40/3 =

     253.46 x 2 = $506.93.)


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issue is one of statutory interpretation and is reviewed de novo. See Cassens Transport

Co. v. Industrial Comm'n, 218 Ill. 2d 519, 524 (2006). On the other hand, the City argues

that the Commission's calculation of an employee's wage differential award is a factual

finding, which will not be set aside on review unless it is against the manifest weight of

the evidence. See Copperweld Tubing Products, Co. v. Illinois Workers' Compensation

Com'n, 402 Ill. App. 3d 630, 635 (2010). We find both of these statements to be correct,

depending on the issue presented. First, as discussed in further detail below, we find that

the issue raised in this case requires this court to interpret the language of the Act. To

that extent, we employ a de novo standard of review. See Cassens Transport Co., 218 Ill.

2d at 524. However, once we have set forth the proper interpretation of the Act, the issue

of whether the Commission properly calculated the wage differential award under the

statute as we have interpreted it is subject to a manifest weight of the evidence standard

of review. See Copperweld Tubing Products, Co., 402 Ill. App. 3d at 635.

¶ 19    The calculation of a wage differential award is governed by section 8(d)(1) of the

Act, which provides:

       "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 *** receive compensation for the duration of his disability,

       *** 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 able to earn in some suitable employment or business after the accident."
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       (Emphasis added.) 820 ILCS 305/8(d)(1) (West 2012).

¶ 20   "To qualify for a wage differential under section 8(d)(1) of the Act (820 ILCS

305/8(d)(1) (West 2012)), a claimant must prove (1) partial incapacity which prevents

him from pursuing his 'usual and customary line of employment' and (2) an impairment

of earnings." Gallianetti v. Illinois Industrial Comm'n, 315 Ill. App. 3d 721, 730 (2000).

In order to prove an impairment of earnings, a claimant must prove his actual earnings for

a substantial period before the accident and after he returns to work, or in the event that

he has not returned to work, he must prove what he is able to earn in some suitable

employment. Id. Once the claimant provides evidence of these amounts, it is the

Commission's function to use the formula provided in section 8(d)(1) of the Act (820

ILCS 305/8(d)(1) (West 2012)) to calculate the amount of the wage differential.

¶ 21   Whether the claimant is entitled to a wage differential is not an issue on appeal.

However, the claimant takes issue with the Commission's method of determining "the

average amount which [he] is able to earn in some suitable employment or business after

the accident." Although Illinois courts have previously set forth the proper standard to be

employed in determining "the average amount which [an employee] 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" (see, i.e., Deichmiller v. Industrial Comm'n, 147 Ill. App. 3d 66,

71-74 (1986); Old Ben Coal, Co. v. Industrial Comm'n, 198 Ill. App. 3d 485, 493

(1990)), no Illinois court has set forth an interpretation of 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
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the employee has not returned to work. Accordingly, we find this to be an issue of first

impression and proceed to interpret the Act to resolve this legal issue.

¶ 22   With regard to the interpretation of the Act, the Illinois Supreme Court has

provided as follows:

       "In interpreting the Act, our primary goal is to ascertain and give effect to the

       intent of the legislature. [Citation.] We determine this intent by reading the

       statute as a whole and considering all the relevant parts. [Citations.] We must

       construe the statute so that each word, clause, and sentence is given a reasonable

       meaning and not rendered superfluous, avoiding an interpretation that would

       render any portion of the statute meaningless and void. [Citation.] We interpret

       the Act liberally to effectuate its main purpose: providing financial protection for

       injured workers. [Citation.]" Cassens Transport Co., 218 Ill. 2d at 524.

¶ 23   Here, the relevant statutory language is straightforward and succinct. In making

the calculation of a wage differential under section 8(d)(1) of the Act (820 ILCS

305/8(d)(1) (West 2012)), the Commission must determine "the average amount which

[the claimant] is able to earn in some suitable employment or business after the accident."

In calculating this average amount, if the claimant is working at the time of the

calculation, the claimant must prove his actual earnings for a substantial period after he

returns to work, and the Commission may apply his then current average weekly wage to

the calculation. See Gallianetti, 315 Ill. App. 3d at 730; see also, Levato v. Workers'

Compensation Comm'n, 2014 IL App (1st) 130297WC, ¶29-¶30. However, as in the case

at bar, if the claimant is not working at the time of the calculation, the Commission must
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rely on functional and vocational expert evidence. 4 See Gallianetti, 315 Ill. App. 3d at

730 (labor market survey); Levato, 2014 IL App (1st) at ¶12-¶13 (vocational

rehabilitation specialist and labor market survey); United Airlines, Inc., 2013 IL App

(1st) 121136WC at ¶4-¶7 (vocational rehabilitation specialists).

¶ 24    In addition, where the claimant is not working at the time of the hearing, it is

important to note that section 8(d)(1) requires that an average wage be derived from

suitable employment for the claimant. Suitable employment is employment in which the

claimant is both able and qualified to perform.        See Merriam-Webster's Collegiate

Dictionary, 1249 (11th ed. 2006) (definition of "suitable" in relation to a candidate for a

job is "able and qualified"). For all of these reasons, we hold that in order to calculate a

wage differential award, the Commission must identify, based on the evidence in the

record, an occupation that the claimant is able and qualified to perform, and apply the

average wage for that occupation to the wage differential calculation. As a corollary to

this holding, the claimant is required to introduce evidence sufficient for the Commission

to identify an occupation that the claimant is able and qualified to perform, and the

4
    We note that in the case where the claimant is working at the time of the calculation,

    but functional and/or vocational evidence is submitted which is sufficient to determine

    another suitable occupation for the claimant, there is nothing in section 8(d)(1) of the

    Act (820 ILCS 8(d)(1) (West 2012)) that would prevent the Commission from utilizing

    such evidence to determine the average wage the claimant could make in some suitable

    employment as set forth in this opinion, and vice versa.


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average wage for that occupation. In any case where the Commission identifies an

occupation that the claimant is able and qualified to perform, as well as the average wage

for that occupation, and applies that average wage to the appropriate part of the formula,

the Commission's determination becomes a factual determination, and thus will not be

disturbed unless it is against the manifest weight of the evidence.      See Copperweld

Tubing Products, Co., 402 Ill. App. 3d at 635.

¶ 25   Having set forth the precise method that the Commission must utilize in

determining "the average amount [the claimant] is able to earn in some suitable

employment or business after the accident," we turn to the Commission's decision in

order to determine whether it was against the manifest weight of the evidence. See

Copperweld Tubing Products, Co., 402 Ill. App. 3d at 635.            In its decision, the

Commission used $13.78 as the average amount the claimant is able to earn. However,

the Commission did not identify a suitable occupation for the claimant and, accordingly,

did not identify $13.78 as the average amount the claimant is able to earn in any suitable

occupation. Rather, the Commission found that the claimant's lack of effort in obtaining

alternative suitable employment led the Commission to find that the claimant is capable

of earning the highest amount that Mr. Blumenthal opined he was capable of earning,

which was $13.78 per hour. Nevertheless, if, based on the record, this court can identify

said occupation and average wage of $13.78, we will affirm the Commission's

determination. See Comfort Masters v. Workers' Compensation Comm'n, 382 Ill. App.

3d 1043, 1045-46 (2008) (quoting Butler Manufacturing Co. v. Industrial Comm'n, 140

Ill. App. 3d 729, 734 (1986)) (" '[w]e will affirm *** the Commission's decision if there
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is any legal basis in the record which would sustain that decision, regardless of whether

the particular reasons or findings contained in the decision are correct or sound.' ").

¶ 26   Turning to the record, $13.78 was identified in Blumenthal's report as the average

wage of a school bus driver. However, the record is clear that, at the time of the hearing,

the claimant did not possess a driver's license. As such, he was not qualified for the

occupation of school bus driver. In addition, there is no other evidence in the record

reflecting an occupation that the claimant is able and qualified to perform that has an

average wage of $13.78 per hour. Accordingly, the Commission's calculation of the

claimant's wage differential is against the manifest weight of the evidence. As such, the

circuit court's judgment confirming the Commission's decision must be reversed, the

Commission's wage differential award vacated, and this cause remanded to the

Commission for further proceedings, including the identification by the Commission of

an occupation the claimant is able and qualified to perform, and a calculation of the wage

differential using the average wage of that occupation.

¶ 27                                    CONCLUSION

¶ 28   For the foregoing reasons, we reverse the judgment of the circuit court that

confirmed the Commission's decision, vacate the Commission's decision, and remand this

matter to the Commission with directions that the Commission recalculate the claimant's

wage differential in accordance with this opinion.

¶ 29   Circuit court judgment reversed.

¶ 30   Commission decision vacated and cause remanded to the Commission with

directions.
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