                          Illinois Official Reports

                                 Appellate Court



                  Lenhart v. Illinois Workers’ Compensation Comm’n,
                              2015 IL App (3d) 130743WC



Appellate Court      KENNETH LENHART, Appellant, v. THE ILLINOIS WORKERS’
Caption              COMPENSATION COMMISSION et al. (USF Holland, Appellee).




District & No.       Third District
                     Docket No. 3-13-0743WC




Filed                March 20, 2015




Decision Under       Appeal from the Circuit Court of Will County, No. 12-MR-1596; the
Review               Hon. Theodore Jarz, Judge, presiding.




Judgment             Reversed in part, affirmed in part, cause remanded.




Counsel on           David W. Olivero, of Louis E. Olivero & Associates, of Peru, for
Appeal               appellant.

                     John Campbell, of Keefe, Campbell & Associates, LLC, of Chicago,
                     for appellee.
     Panel                    JUSTICE STEWART 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 in a workers’ compensation case, Kenneth Lenhart, appeals a finding by the
       Illinois Workers’ Compensation Commission (the Commission) that he failed to prove that
       he is permanently and totally disabled because of a workplace accident. Alternatively, he
       argues that the Commission erred in failing to determine whether he was entitled to a
       permanent partial disability (PPD) benefit award based on a wage differential calculation,
       rather than a percentage of a person as a whole award. For the following reasons, we agree
       with the latter argument, reverse the Commission’s PPD award, and remand for a
       determination of whether the claimant is entitled to a PPD award based on a wage differential
       calculation.

¶2                                           BACKGROUND
¶3          The claimant worked for the employer, USF Holland, as a dockworker and truck driver.
       In December 2004, the claimant injured his low back in a workplace accident, underwent a
       course of medical treatments, and filed an application for adjustment of claim pursuant to the
       Illinois Workers’ Compensation Act (the Act) (820 ILCS 305/1 et seq. (West 2004)).
¶4          At the arbitration hearing, the parties disputed the extent of the claimant’s injuries. The
       claimant presented evidence, including medical opinions from his treating physicians, in an
       attempt to show that he is permanently and totally disabled. The employer does not dispute
       that the claimant sustained a workplace accident, that he suffered conditions of ill-being to
       his back because of the accident, or that he can no longer perform the same physical demand
       level as a result of the accident. The employer stipulated that the claimant cannot meet the
       physical demands of a dockworker/truck driver as a result of his accident, but disputed the
       claimant’s assertion that he is totally and permanently disabled. The employer presented
       evidence and opinions that the claimant exaggerated his physical limitations. The employer’s
       evidence included videotape surveillance evidence showing the claimant engaged in various
       physical activities since the accident.
¶5          The claimant’s workplace accident occurred on December 14, 2004, when he drove a
       forklift over a dock plate that buckled. The accident caused a jarring force to his low back.
       The claimant immediately experienced low back pain, which became worse over the next
       few days. He testified that prior to this accident, he was in good health. After the accident,
       the claimant underwent a significant amount of medical treatments, including injections,
       physical therapy, and two back surgeries, because of continuous low back pain. In addition,
       the claimant underwent multiple independent medical examinations (IMEs).
¶6          The record on appeal includes the surveillance video footage that the employer obtained
       and spanned an approximate three-year period from October 2007 through October 2009.
       The surveillance video footage showed the claimant engaged in numerous physical activities,

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       including riding a motorcycle, attending football games, yard work, and some lifting and
       bending activities.
¶7          One of the claimant’s treating physicians, Dr. George DePhillips, concluded that the
       claimant was permanently and totally disabled from work even after viewing some of the
       surveillance videos. During his evidence deposition, Dr. DePhillips explained that the
       claimant could obviously perform some work, “but the question is, how many hours a day
       and what are his restrictions, and at some point a patient has restrictions that deem them
       unemployable.” He admitted that he based his opinions about the claimant’s restrictions, in
       part, on the claimant’s subjective reporting of his condition.
¶8          The claimant’s psychiatrist, Dr. Greg Hawley, diagnosed the claimant as having chronic
       pain disorder secondary to low back pain along with depression and impulse control disorder.
       Dr. Hawley believed that the claimant’s conditions were causally related to the workplace
       accident.
¶9          At the request of the employer, Dr. Fransisco Espinosa conducted an IME of the claimant
       in January 2008, and he found that the claimant was at maximum medical improvement
       (MMI) at that time. He believed that the claimant was ready to work and could occasionally
       lift up to 25 pounds, could occasionally sit, and must avoid bending and twisting at the waist.
       In his opinion, these were permanent restrictions. Dr. Espinosa viewed some of the video
       surveillance of the claimant performing yard work on several occasions, and opined that the
       activities in the video did not “correlate with his alleged current symptoms.” The doctor
       concluded that the claimant was capable of performing light- to medium-level work.
¶ 10        At the request of the employer, a clinical psychologist, Ronald Gahellen, also performed
       an IME. Gahellen examined the claimant, reviewed the claimant’s medical records, and
       administered a number of objective tests to measure his personality, intellectual functioning,
       and emotional functioning. Gahellen concluded that during his examination, the claimant
       “responded in a guarded, self-favorable manner and made an effort to control the impression
       formed of him.” He believed that the claimant’s condition involved “a significant
       psychological component” and that the claimant “appeared invested in remaining in a role as
       an invalid due to medical problems.” Gahellen also noted that the surveillance tapes that he
       reviewed showed the claimant “interacting in a comfortable, natural manner with other
       people.” This raised a concern with Gahellen that the claimant’s self-reported “limitations in
       functioning may be misleading and exaggerated.”
¶ 11        The claimant underwent a functional capacity evaluation (FCE) in April 2009, which
       showed that the claimant could work at the “Very Light” physical demand level. He
       underwent a second FCE over a two-day period in May 2009. This FCE determined that the
       claimant could perform at the sedentary level with occasional lifting up to 15 pounds,
       walking limited to 10 minutes, and standing 30 minutes. The therapist commented that the
       claimant “demonstrated significant inconsistency of postural restriction and movement
       patterns throughout the course of the evaluation.” He believed that the claimant had
       significant nonorganic components to his level of pain and disability.
¶ 12        During the course of the claimant’s medical treatments, the employer hired a vocational
       rehabilitation company, E.P.S. Rehabilitation, which performs vocational rehabilitation
       services. E.P.S. Rehabilitation performed a “Limited Telephonic Employer Sampling” of 16
       businesses from the claimant’s general area. A vocational rehabilitation counselor at E.P.S.
       Rehabilitation, Duane Bigelow, testified in an evidence deposition that the sampling is only a

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       snapshot of employment opportunities, which may or may not be available at a point in time.
       Two of the sixteen businesses included in the sampling reported job openings, and both
       openings were for service/parts managers. One opening required lifting 30 to 40 pounds, and
       the other position required alternate sitting and standing all day.
¶ 13       The claimant hired his own vocational specialist, Ron Malik, who opined that the two
       jobs available in E.P.S. Rehabilitation’s sampling were outside the claimant’s physical
       limitations. He also opined that if the claimant was released to work, he needed to work at
       the light physical demand level with no significant postural functions such as bending,
       stooping, crouching, or crawling. According to Malik, the claimant required a job with low
       stress, simple and repetitive tasks, and limited contact with the public, coworkers, and
       supervisors. Malik concluded that the claimant was unemployable without education and/or
       training for a new career.
¶ 14       On June 15, 2009, Bigelow began assisting the claimant with a self-directed job search.
       In July 2009, upon Bigelow’s recommendation, the employer approved an introductory
       computer class for the claimant. The claimant subsequently took two eight-week computer
       courses and received passing grades in both classes.
¶ 15       Another vocational rehabilitation counselor from E.P.S. Rehabilitation, Edward P.
       Steffan, testified that he believed that the claimant was employable in the current labor
       market within his restrictions. When asked to explain his opinion, he testified as follows:
       “His rehabilitation variables, which we describe as his age, which is approximately 40 years,
       his available physical capabilities as we’ve discussed, his level of education, his training, his
       previous experience and acquired skills and knowledge allow him access to a readily
       available and stable labor market at positions in which he could earn between $10 and $15
       per hour.” He opined that the top-earning capacity for the claimant was $33.65 per hour, but
       that he did not want to say that the claimant would be employable between $15 and $33.65
       per hour because “that could be somewhat misleading.”
¶ 16       During his deposition testimony, Bigelow testified that they established a broader range
       of $8 to $33.65 per hour as the claimant’s earning potential based on a “snapshot” of the
       labor market at a particular time. However, he believed that “the more likely median” would
       be the $10 to $15 range. Likewise, Steffan testified that $10 to $15 per hour was the “median
       or mean extracted from” the larger range of $8 and $33.65 per hour. He was “confident” that
       $10 to $15 per hour was “a very realistic and achievable wage for [the claimant].” A report
       dated January 27, 2010, and signed by both Steffan and Bigelow stated that the claimant “is
       both placeable and employable in positions earning between $10.00 and $15.00 per hour.”
¶ 17       Steffan testified that during the time that he assisted with the claimant’s job search, the
       claimant told potential employers “inappropriate information regarding his available physical
       capabilities” which resulted in “sabotaging” any realistic chance of being considered as a
       valid applicant for employment. He believed that an individual who in good faith was trying
       to gain employment would not make these types of comments to potential employers.
¶ 18       At the conclusion of the arbitration hearing, the arbitrator found that the claimant’s
       conditions of ill-being, including the condition of his low back and his mood disorder and
       depression, were causally related to the workplace accident. The arbitrator awarded the
       claimant medical expenses and TTD benefits.
¶ 19       With respect to the nature and extent of the claimant’s injury, the arbitrator found that the
       claimant proved that he was permanently and totally disabled (PTD) as a result of the

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       work-related accident under an odd-lot theory. The employer appealed the arbitrator’s
       decision to the Commission.
¶ 20       In its brief on review filed with the Commission, the employer asked the Commission to
       reverse the arbitrator’s PTD benefits award and “enter judgment awarding [the claimant]
       wage differential benefits based upon the $30 per hour jobs Mr. Steffan testified [the
       claimant] would be currently capable of earning.” The claimant did not argue that he was
       entitled to a PPD award based on a wage differential calculation, but instead requested the
       Commission to affirm the arbitrator’s PTD award.
¶ 21       The Commission reversed the arbitrator’s PTD award and modified the arbitrator’s award
       with respect to the nature and extent of the claimant’s injury. It affirmed and adopted all
       other aspects of the arbitrator’s decision. The Commission unanimously found that the
       claimant failed to prove that he was permanently and totally disabled. The Commission noted
       that the record contains medical opinions that the claimant was unable to work, but it found
       that those opinions were contradicted by the surveillance videos “showing [the claimant] to
       be far more physically and mentally capable than his treating physicians were led to believe.”
¶ 22       The Commission found that Dr. DePhillips’s opinion that the claimant was permanently
       and totally disabled was unreliable in light of the surveillance footage, which was “counter to
       Dr. DePhillips’s understanding of [the claimant’s] capabilities.” The Commission also noted
       that the claimant’s psychiatrist, Dr. Hawley, reviewed some of the surveillance video and
       admitted that the claimant appeared significantly more mobile in the video footage than he
       was in his office and engaged in more social interaction than what the claimant reported
       being able to do.
¶ 23       The Commission concluded that the claimant exaggerated his functional incapacity to his
       treating physicians. It found that the most reliable medical opinions were the opinions of the
       employer’s IME doctor, Dr. Espinosa, who concluded that the claimant could return to work
       with a 25-pound lifting restriction at the light end of the light-medium demand level. The
       Commission also relied on the report of the employer’s IME psychologist, Gahellen, who
       administered a number of tests that indicated that the claimant was exaggerating his
       functional limitations. The Commission noted that Gahellen testified that the surveillance
       footage undermined the claimant’s subjective reports of his capabilities.
¶ 24       The Commission found the claimant’s testimony to be unreliable and that expert opinions
       based on the claimant’s subjective reporting of his capabilities were, likewise, unreliable.
       The Commission stated:
                   “We find it likely that [the claimant] is readily capable of pursuing additional
               training and job searching. While we note that the job search logs show that [the
               claimant] contacted a large number of potential employers, we also note numerous
               days when [the claimant] reported being in too much pain to pursue his job search.
               We note that [the claimant] focused a significant amount of time and energy on
               defending himself against perceived attacks from Mr. Steffan and [the employer].
               After reviewing the evidence, particularly the surveillance footage, we find the
               discrepancy between what [the claimant] claims to be capable of doing and what he is
               actually capable of doing is vast, and therefore we decline to find that he is
               permanently and totally disabled under an odd lot theory.”
¶ 25       The Commission noted that the claimant had a 25-pound lifting restriction and exhibited
       some difficulties obtaining work within his restrictions. As noted above, in its brief on

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       review, the employer requested the Commission to enter a wage differential award. The
       Commission, however, did not analyze whether the claimant was entitled to receive a wage
       differential award, but instead concluded that the claimant was “entitled to permanent partial
       disability benefits representing 75% loss of use of the whole person.”
¶ 26       The claimant appealed the Commission’s decision to the circuit court. The circuit court
       entered a judgment confirming the Commission’s decision. The claimant now appeals the
       circuit court’s judgment and raises two alternative issues on appeal. First, the claimant argues
       that the Commission’s finding that he failed to prove that he was entitled to PTD benefits
       was against the manifest weight of the evidence. Second, the claimant advances an
       alternative argument that the Commission erred in failing to consider his right to receive PPD
       benefits based on a wage differential award.

¶ 27                                            ANALYSIS
¶ 28                                                 I
¶ 29                           Nature and Extent of Injury: Odd-Lot Theory
¶ 30       The first issue that the claimant raises on appeal is that the Commission’s finding that he
       failed to prove that he was permanently and totally disabled pursuant to section 8(f) of the
       Act (820 ILCS 305/8(f) (West 2012)), under an odd-lot theory, was against the manifest
       weight of the evidence. The record, however, supports the Commission’s finding that the
       claimant failed to prove that he was permanently and totally disabled under an odd-lot
       theory.
¶ 31       The claimant has the burden of establishing the nature and extent of his injury by a
       preponderance of the evidence. Chicago Park District v. Industrial Comm’n, 263 Ill. App. 3d
       835, 843, 635 N.E.2d 770, 776 (1994). This is a factual question to be determined by the
       Commission. Oscar Mayer & Co. v. Industrial Comm’n, 79 Ill. 2d 254, 256, 402 N.E.2d 607,
       608 (1980). Accordingly, the initial determination of whether a claimant is permanently and
       totally disabled under section 8(f) of the Act is a question of fact to be determined by the
       Commission, and its determination on this issue cannot be overturned on review unless it is
       against the manifest weight of the evidence. Economy Packing Co. v. Illinois Workers’
       Compensation Comm’n, 387 Ill. App. 3d 283, 293, 901 N.E.2d 915, 924 (2008). “For a
       finding of fact to be against the manifest weight of the evidence, an opposite conclusion must
       be clearly apparent from the record on appeal.” City of Springfield v. Illinois Workers’
       Compensation Comm’n, 388 Ill. App. 3d 297, 315, 901 N.E.2d 1066, 1081 (2009).
¶ 32       An employee need not be reduced to complete physical incapacity to be entitled to PTD
       benefits. Ceco Corp. v. Industrial Comm’n, 95 Ill. 2d 278, 286, 447 N.E.2d 842, 845 (1983).
       Instead, a PTD award is proper when the employee can make no contribution to industry
       sufficient to earn a wage. Westin Hotel v. Industrial Comm’n, 372 Ill. App. 3d 527, 544, 865
       N.E.2d 342, 357 (2007). “The focus of the Commission’s analysis must be upon the degree
       to which the claimant’s medical disability impairs his employability ***.” Alano v. Industrial
       Comm’n, 282 Ill. App. 3d 531, 534, 668 N.E.2d 21, 24 (1996). A person is not entitled to
       PTD benefits if he is qualified for and capable of obtaining gainful employment without
       seriously endangering his health or life. Interlake, Inc. v. Industrial Comm’n, 86 Ill. 2d 168,
       176, 427 N.E.2d 103, 107 (1981).



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¶ 33       As noted above, the issue the claimant raises on appeal concerns whether he established
       that he is permanently and totally disabled under the odd-lot category. The odd-lot category
       for purposes of a PTD award arises when a “claimant’s disability is limited in nature so that
       he is not obviously unemployable, or if there is no medical evidence to support a claim of
       total disability.” Valley Mould & Iron Co. v. Industrial Comm’n, 84 Ill. 2d 538, 546-47, 419
       N.E.2d 1159, 1163 (1981). In these situations, the claimant can establish that he is entitled to
       PTD benefits under the odd-lot category by proving the unavailability of employment to
       persons in his circumstances. Ameritech Services, Inc. v. Illinois Workers’ Compensation
       Comm’n, 389 Ill. App. 3d 191, 204, 904 N.E.2d 1122, 1133 (2009).
¶ 34       “The claimant ordinarily satisfies his burden of proving that he falls into the ‘odd lot’
       category in one of two ways: (1) by showing diligent but unsuccessful attempts to find work,
       or (2) by showing that because of his age, skills, training, and work history, he will not be
       regularly employed in a well-known branch of the labor market.” Westin Hotel, 372 Ill. App.
       3d at 544, 865 N.E.2d at 357. If the claimant establishes that he fits into the odd-lot category,
       the burden shifts to the employer to prove that the claimant is employable in a stable labor
       market and that such a market exists. Id.
¶ 35       In the present case, the Commission viewed the surveillance videos and detailed its
       findings based on the contents of the video footage. We have also viewed the surveillance
       videos and conclude that the videos support the Commission’s findings with respect to their
       content. In assessing the claimant’s credibility with respect to his capabilities, the
       Commission compared the claimant’s self-reported limitations with the activities depicted in
       the surveillance videos. The Commission concluded that the claimant’s activities shown in
       the videos were not “the activities of a man who is unable to stand or sit without great pain.”
       The Commission found that the claimant significantly exaggerated his reporting of the extent
       of his injury and that he was not credible. The assessment of the claimant’s credibility and
       the weight to be given to his testimony lies solely within the province of the Commission.
       Gilster Mary Lee Corp. v. Industrial Comm’n, 326 Ill. App. 3d 177, 184, 759 N.E.2d 979, 984
       (2001).
¶ 36       Moreover, the Commission’s finding with respect to the claimant’s testimony was
       significant because, as the Commission found, much of the medical opinion testimony that
       the claimant relied on to meet his burden was based on his own subjective reporting of his
       capabilities to his medical providers. The Commission found the opinion testimony of Dr.
       DePhillips to be “unreliable” because the claimant’s activities that he performed “in the
       surveillance videos runs counter to Dr. DePhillips’s understanding of the claimant’s
       disabilities.” In addition, the Commission found it significant that after the claimant’s
       treating psychiatrist, Dr. Hawley, viewed some of the surveillance video, he opined that the
       claimant appeared to be more mobile in the video than he was in his office. In addition, Dr.
       Hawley noted that the claimant engaged in social interaction more than he reported being
       able to do.
¶ 37       The Commission weighed the conflicting medical opinions and concluded that the
       opinions of Dr. Espinosa and the employer’s psychologist, Gahellen, were the most reliable.
       Nothing in the record compels us to second-guess the Commission’s assessment of this
       medical testimony. After viewing the surveillance video, Dr. Espinosa concluded that the
       claimant could return to work with a 25-pound lifting restriction at the light end of the
       light-medium demand level.

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¶ 38       The surveillance videos support the Commission’s finding with respect to its resolution
       of the conflicting medical opinions and its determination that the claimant failed to prove that
       he was permanently and totally disabled. Therefore, we affirm that portion of the circuit
       court’s judgment that confirmed the Commission’s denial of PTD benefits.

¶ 39                                                  II
¶ 40                          Calculation of PPD Benefits: Wage Differential
¶ 41        The claimant argues, alternatively, that the Commission erred in calculating his PPD
       benefits based on a percentage of the person as a whole rather than a wage differential
       calculation. We render no opinion on whether the claimant is entitled to a wage differential
       award; however, we believe that the Commission erred in failing to decide the issue on the
       merits. The employer raised the question of whether the claimant should receive a wage
       differential by arguing the issue in its brief before the Commission. In addition, it is an issue
       that appears from the evidence of record.
¶ 42        Section 8 of the Act governs the “amount of compensation which shall be paid to the
       employee for an accidental injury not resulting in death.” 820 ILCS 305/8 (West 2012).
       Section 8(d) details two types of compensation for employees who are permanently and
       partially disabled; subparagraph (1) provides for a wage differential award and subparagraph
       (2) provides for a percentage of the person as a whole award. 820 ILCS 305/8(d) (West
       2012); Dawson v. Illinois Workers’ Compensation Comm’n, 382 Ill. App. 3d 581, 585, 888
       N.E.2d 135, 138 (2008).
¶ 43        The supreme court has expressed a preference for wage differential awards. See
       Gallianetti v. Industrial Comm’n, 315 Ill. App. 3d 721, 727, 734 N.E.2d 482, 487 (2000)
       (citing General Electric Co. v. Industrial Comm’n, 89 Ill. 2d 432, 438, 433 N.E.2d 671, 674
       (1982)). The supreme court explained that “[i]t is often easier to calculate how much a
       claimant’s earnings have decreased since the accident than to assign a percentage partial loss
       of use.” General Electric Co., 89 Ill. 2d at 437, 433 N.E.2d at 673-74. In Gallianetti, we held
       that “the plain language of section 8(d) prohibits the Commission from awarding a
       percentage-of-the-person-as-a-whole award where the claimant has presented sufficient
       evidence to show a loss of earning capacity.” Gallianetti, 315 Ill. App. 3d at 728, 734 N.E.2d
       at 488.
¶ 44        In order to qualify for a wage differential award under section 8(d)(1) of the Act, a
       claimant must prove (1) a partial incapacity which prevents him from pursuing his “usual and
       customary line of employment” and (2) an impairment in earnings. Id. at 730, 734 N.E.2d at
       489. The purpose of a wage differential award is “to compensate an injured claimant for his
       reduced earning capacity, and if the injury does not reduce his earning capacity, he is not
       entitled to such compensation.” Dawson, 382 Ill. App. 3d at 586, 888 N.E.2d at 139. “A
       claimant must prove his actual earnings for a substantial period before his accident and after
       he returns to work, or in the event that he is unable to return to work, he must prove what he
       is able to earn in some suitable employment.” (Internal quotation marks omitted.) Id.
¶ 45        Ordinarily, the issue of whether a claimant is entitled to a wage differential award is a
       question of fact for the Commission to determine, and its decision in the matter will not be
       disturbed on appeal unless it is against the manifest weight of the evidence. Id. However, we



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       review issues of statutory construction under the de novo standard of review. Curtis v. Illinois
       Workers’ Compensation Comm’n, 2013 IL App (1st) 120976WC, ¶ 13, 987 N.E.2d 407.
¶ 46       In the present case, the employer stipulated that the claimant could no longer meet the
       physical demands of his usual and customary line of employment as a dockworker/truck
       driver. Also, the employer’s medical expert, Dr. Espinosa, opined that the claimant could
       return to work with a 25-pound lifting restriction at the light end of the light-medium demand
       level, and the Commission found Dr. Espinosa’s opinion to be credible. Therefore, the record
       conclusively establishes the first requirement for a wage differential award.
¶ 47       With respect to the second requirement, reduced earning capacity, the employer’s
       vocational rehabilitation experts, Steffan and Bigelow, opined that there was a readily
       available and stable labor market in which the claimant could obtain positions earning
       between $10 and $15 per hour.
¶ 48       The evidence in the record, therefore, supports a finding that the claimant was entitled to
       a wage differential award, i.e., that he suffered a partial incapacity which prevents him from
       pursuing his usual and customary line of employment and that he has an impairment in
       earnings. The Commission, however, did not consider a wage differential award under
       section 8(d)(1), but instead awarded PPD benefits under section 8(d)(2). When the record
       establishes that an employee has suffered an impairment of earning capacity, section 8(d)(2)
       comes into play only when “the employee elects to waive his right to recover under ***
       subparagraph 1.” (Emphasis added.) 820 ILCS 305/8(d)(2) (West 2012); Gallianetti, 315 Ill.
       App. 3d at 729, 734 N.E.2d at 488. Nothing in the record suggests that the claimant explicitly
       elected to waive his right to recover a wage differential award under section 8(d)(1).
¶ 49       Although the claimant did not request a wage differential award, we do not consider this
       a waiver of his right to recover a wage differential award. The claimant made no election
       concerning PPD benefits because he sought PTD benefits. The Commission should not
       consider the claimant’s request for PTD to be an election with respect to unrequested PPD
       benefits, particularly when the employer itself asked the Commission to grant a wage
       differential award and when the record supports a wage differential award. As noted by the
       supreme court, a wage differential award is “often easier to calculate” than “a percentage
       partial loss of use.” General Electric Co., 89 Ill. 2d at 437, 433 N.E.2d at 673-74.
¶ 50       Furthermore, section 19(e) of the Act provides that the Commission shall “review the
       decision of the Arbitrator and all questions of law or fact which appear from the statement of
       facts or transcript of evidence.” 820 ILCS 305/19(e) (West 2012). In the present case, the
       record shows that the claimant is functionally incapacitated and that his incapacitation
       resulted in a loss of earning capacity. Therefore, we believe that the question of the
       claimant’s entitlement to an award under section 8(d)(1) appears from the evidence of record
       in this case and that the Commission erred in failing to consider a wage differential award.
¶ 51       The Commission found that the claimant carried his burden of showing his
       incapacitation. Also, the parties stipulated to the amount the claimant was earning at the time
       of his injury; the parties’ request for a hearing included an agreement that the claimant’s
       average weekly wage during the year preceding the injury was $1,339.66. The employer’s
       vocational experts, in turn, supplied evidence that the claimant’s post accident earning
       capacity was in the range of $10 to $15 per hour. See Levato v. Illinois Workers’
       Compensation Comm’n, 2014 IL App (1st) 130297WC, ¶ 28, 14 N.E.3d 1195 (in reversing
       the Commission’s failure to consider a wage differential award, the court noted that “[o]n the

                                                  -9-
       issue of earnings impairment, the Commission fixed the claimant’s average weekly wage at
       $1,145.35, and [the employer’s] own witness[ ] fixed the pay for positions appropriate for the
       claimant’s present condition between $8 and $20 per hour”).
¶ 52       We have previously held that if a claimant fails to present evidence regarding his
       entitlement to a wage differential award, then he implicitly waives his right to such an award.
       Gallianetti, 315 Ill. App. 3d at 729, 743 N.E.2d at 488. The present case is distinguishable,
       however, because even though the claimant did not pursue PPD benefits, the record,
       nonetheless, contains evidence relevant to the claimant’s entitlement to a wage differential
       award. In addition, nothing in the record suggests that the claimant’s request for PTD
       benefits should be construed as an election, express or implied, with respect to his rights to
       PPD benefits. In cases where a claimant unsuccessfully seeks PTD benefits and does not
       make an alternative request for PPD benefits, the claimant is still entitled to PPD benefits
       when the evidence supports such an award. Likewise, in such cases, we believe that the
       Commission is obligated to consider a wage differential award when there is evidence in the
       record that could support a wage differential award (regardless of which party presented the
       evidence), and when nothing in the record suggests that the claimant elected to waive his
       right to recover such an award.
¶ 53       Accordingly, we reverse that portion of the circuit court’s judgment that confirmed the
       Commission’s award of PPD benefits for 75% loss of the use of the person as a whole, vacate
       the Commission’s PPD award, and remand the matter to the Commission with directions to
       decide the claimant’s entitlement to a wage differential award on the merits. “In the event
       that Commission determines that the claimant is entitled to a wage differential award, it
       should make the award. If, on the other hand, the Commission decides that he is not entitled
       to a wage differential [a]ward under section 8(d)(1) of the Act, it is directed to reinstate its
       award of PPD benefits for [75]% loss of use of a person as a whole under section 8(d)(2).”
       Levato, 2014 IL App (1st) 130297WC, ¶ 30, 14 N.E.3d 1195.

¶ 54                                        CONCLUSION
¶ 55       For the foregoing reasons, we reverse that portion of the circuit court’s judgment which
       confirmed the Commission’s award of PPD benefits of 75% loss of use of a person as a
       whole, affirm the circuit court’s judgment in all other respects, vacate that portion of the
       Commission’s decision which awarded the claimant PPD benefits pursuant to section 8(d)(2)
       of the Act, and remand this matter to the Commission with directions.

¶ 56      Reversed in part, affirmed in part, cause remanded.




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