                                2015 IL App (1st) 133233WC

                                    FILED: June 26, 2015

                                      NO. 1-13-3233WC

                               IN THE APPELLATE COURT

                                        OF ILLINOIS

                                      FIRST DISTRICT

                   WORKERS' COMPENSATION COMMISSION DIVISION

JERRY DIBENEDETTO,                                  )        Appeal from
              Appellant,                            )        Circuit Court of
                                                    )        Cook County
              v.                                    )        No. 13L50459
THE ILLINOIS WORKERS' COMPENSATION                  )
COMMISSION et al. (City of Chicago, Appellee).      )        Honorable
                                                    )        Eileen O'Neill Burke,
                                                    )        Judge Presiding.

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

                                          OPINION

¶1            On March 14, 2007, claimant, Jerry DiBenedetto, filed an application for adjust-

ment of claim pursuant to the Workers' Compensation Act (Act) (820 ILCS 305/1 to 30 (West

2006)), alleging work-related injuries that arose out of and in the course of his employment on

December 12, 2006, and seeking benefits from the employer, the City of Chicago. Following a

hearing, the arbitrator determined claimant sustained compensable injuries under the Act and

awarded him (1) temporary total disability (TTD) benefits of $1,073.33 per week for 106-4/7

weeks; (2) maintenance benefits of $1,073.33 per week for 129-1/7 weeks; and (3) wage-

differential benefits of $982.67 per week from September 9, 2011, through the duration of his
2015 IL App (1st) 133233WC


disability.

¶2             On review, the Illinois Workers' Compensation Commission (Commission) modi-

fied the arbitrator's wage-differential award, reducing it from $982.67 to $840.65 per week—the

maximum weekly benefit allowable under section 8(b)(4) of the Act (820 ILCS 305/8(b)(4)

(West 2006)) based on claimant's December 2006 accident date. The Commission otherwise af-

firmed and adopted the arbitrator's decision. On judicial review, the circuit court of Cook Coun-

ty confirmed the Commission. Claimant appeals, arguing the Commission erred by finding the

date of claimant's accidental injury (December 12, 2006), rather than the date of the arbitration

hearing (May 25, 2012), controlled the maximum rate applicable to claimant's wage-differential

award. We affirm.

¶3                                    I. BACKGROUND

¶4             On appeal, the underlying facts are not in dispute and it is unnecessary to recite

them in detail. Briefly stated, the record shows claimant filed his application for adjustment of

claim in March 2007, alleging he injured his right arm, back, and neck at work on December 12,

2006. On May 25, 2012, an arbitration hearing was conducted in the matter. Evidence presented

showed claimant worked for the employer as a hoisting engineer. While at work on December

12, 2006, he fell to the ground from a height of several feet and sustained injuries, including inju-

ries to his right shoulder and cervical spine. Claimant received medical treatment and underwent

surgery on his right shoulder in February 2007 and spinal fusion surgeries in December 2007 and

June 2008.

¶5             In March 2009, a functional capacity evaluation was performed on claimant and

showed he functioned at a light to medium level of work. Claimant's treating physician, Dr. Ed-

ward Goldberg, recommended permanent restrictions for claimant, including that he not return to



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2015 IL App (1st) 133233WC


work for the employer in his former position as a hoisting engineer. Claimant then began voca-

tional rehabilitation and a labor market survey showed he could be expected to earn between $8

to $10 per hour given his education, physical capabilities, and transferable skills. On September

9, 2011, claimant began working in an office position for Manak Insurance, earning $8.25 an

hour. Evidence at arbitration showed claimant's injuries caused a decrease in his earning capaci-

ty and his job with Manak Insurance maximized his earning capacity. Evidence further showed

that, at the time of arbitration, the rate of pay for a hoisting engineer with the employer was

$45.10 an hour.

¶6             (We note the evidence and testimony at arbitration showed the current hourly rate

of pay for claimant's position with the employer was $45.30. Both parties also rely on that figure

in their briefs. However, in her decision, the arbitrator inexplicably found the current rate of pay

for claimant's hoisting engineer position to be $45.10 an hour and used that latter rate in her

wage-differential calculations. The record fails to reflect either party challenged that particular

finding by the arbitrator. Thus, we abide by the $45.10 figure.)

¶7             On September 6, 2012, the arbitrator issued her decision, finding claimant sus-

tained accidental injuries arising out of and in the course of his work for the employer on De-

cember 12, 2006, and awarding benefits as stated. Relevant to this appeal, the arbitrator found

claimant's injuries "caused a loss of earnings rendering him *** permanently partially incapaci-

tated from pursuing his usual and customary employment" and, as a result, he was entitled to

wage-differential benefits pursuant to section 8(d)(1) of the Act (820 ILCS 305/8(d)(1) (West

2006)). Specifically, the arbitrator awarded claimant $982.67 per week, beginning September 9,

2011, and for the duration of his disability.

¶8             The employer sought review with the Commission, seeking modification of the



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2015 IL App (1st) 133233WC


arbitrator's wage-differential award. It argued that, based on the date of claimant's accidental

injury (December 12, 2006), the maximum rate of wage-differential benefits he was entitled to

receive was $840.65 per week. On April 18, 2013, the Commission entered its decision in the

matter. It noted that, pursuant to section 8(b)(4) of the Act (820 ILCS 305/8(b)(4) (West 2006)),

the maximum weekly wage-differential benefit "shall be 100% of the State's average weekly

wage [(State AWW)] in covered industries under the Unemployment Insurance Act [(820 ILCS

405/100 et seq. (West 2006))]." The Commission found the State AWW at the time of claimant's

accidental injury (December 12, 2006) was $840.65, and reduced his weekly wage-differential

benefit to that amount. The Commission otherwise affirmed and adopted the arbitrator's deci-

sion. On October 8, 2013, the circuit court of Cook County confirmed the Commission's deci-

sion.

¶9             This appeal followed.

¶ 10                                   II. ANALYSIS

¶ 11           On appeal, claimant argues the Commission erred in its award of wage-

differential benefits. Specifically, he contends the maximum rate applied to his award should

have been based on the State AWW at the time of his May 2012 arbitration hearing ($966.72)

rather than the State AWW at the time of his December 2006 accidental injury ($840.65).

¶ 12           The issue on appeal involves a matter of statutory interpretation, which presents a

question of law and is subject to de novo review. Gruszeczka v. Illinois Workers' Compensation

Comm'n, 2013 IL 114212, ¶ 12, 992 N.E.2d 1234. "The primary rule of statutory construction is

to ascertain and give effect to the intent of the legislature" and the statutory language "is normal-

ly the best indicator of what the legislature intended." Gruszeczka, 2013 IL 114212, ¶ 12, 992

N.E.2d 1234. "[W]here the statutory language is clear, it will be given effect without resort to



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2015 IL App (1st) 133233WC


other aids for construction." Gruszeczka, 2013 IL 114212, ¶ 12, 992 N.E.2d 1234. However,

where the meaning of an Act is unclear from the statutory language, "the court may look beyond

the language employed and consider the purpose behind the law and the evils the law was de-

signed to remedy [citation], as well as other sources such as legislative history [citation]."

Gruszeczka, 2013 IL 114212, ¶ 12, 992 N.E.2d 1234. "We interpret the Act liberally to effectu-

ate its main purpose: providing financial protection for injured workers." Cassens Transport Co.

v. Industrial Comm'n, 218 Ill. 2d 519, 524, 844 N.E.2d 414, 419 (2006).

¶ 13           Section 8(d)(1) of the Act (820 ILCS 305/8(d)(1) (West 2006)) provides for an

award of wage-differential benefits to an injured employee. At the time of claimant's accidental

injury, that section provided as follows:

                       "If, after the accidental injury has been sustained, the em-

               ployee 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, 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 aver-

               age 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 ac-

               cident." 820 ILCS 305/8(d)(1) (West 2006).

¶ 14           By its own terms, section 8(d)(1) is subject to "limitations as to maximum

amounts fixed in paragraph" 8(b) of the Act (820 ILCS 820 ILCS 305/8(b) (West 2006). 820



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2015 IL App (1st) 133233WC


ILCS 305/8(d)(1) (West 2006). In particular, maximum rates set forth in section 8(b)(4) of the

Act (820 ILCS 305/8(b)(4) (West 2006)) have long been held applicable to wage-differential

awards. See General Electric Co. v. Industrial Comm'n, 144 Ill. App. 3d 1003, 1017, 495

N.E.2d 68, 77 (1986); Bohannon v. Industrial Comm'n, 237 Ill. App. 3d 989, 993, 606 N.E.2d

527, 529 (1992); Fernandes v. Industrial Comm'n, 246 Ill. App. 3d 261, 269, 615 N.E.2d 1191,

1197 (1993). Effective July 20, 2005, the legislature amended section 8(b)(4), adding express

language concerning wage-differential awards and providing as follows: "For injuries occurring

on or after February 1, 2006, the maximum weekly benefit under paragraph (d)1 *** shall be

100% of the [State AWW] in covered industries under the Unemployment Insurance Act." 820

ILCS 305/8(b)(4) (West 2006); Pub. Act 94-277 (eff. July 20, 2005) (amending 820 ILCS

305/8(b)(4) (West 2004)).

¶ 15           To support his position on appeal, claimant argues that the Act has consistently

been interpreted to require that a wage-differential award be calculated based upon both the

claimant's actual earnings at the time of the hearing and what the claimant would have been earn-

ing at the time of the hearing had he not been injured. He maintains that, given this consistent

interpretation, the legislature must have intended the State AWW at the time of the arbitration

hearing to be used to determine the maximum rate of wage-differential benefits. Claimant relies

on the principle of statutory construction that "where the legislature chooses not to amend terms

of a statute after judicial construction, it will be presumed that it has acquiesced in the court's

statement of legislative intent." R.D. Masonry, Inc. v. Industrial Comm'n, 215 Ill. 2d 397, 404,

830 N.E.2d 584, 589 (2005); see also In re Marriage of Mathis, 2012 IL 113496, ¶ 25, 986

N.E.2d 1139 ("We assume not only that the General Assembly acts with full knowledge of pre-

vious judicial decisions, but also that its silence on this issue in the face of decisions consistent



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2015 IL App (1st) 133233WC


with those previous decisions indicates its acquiescence to them.").

¶ 16           First, we do not dispute that wage-differential calculations are based on circum-

stances as they exist at the time of arbitration. In particular, this court has held that a wage-

differential benefit must be "based on the amount the employee would have been able to earn at

the time of the arbitration hearing, not the amount he or she was actually earning at the time of

the injury" (Morton's of Chicago v. Industrial Comm'n, 366 Ill. App. 3d 1056, 1061, 853 N.E.2d

40, 45 (2006)) and that a claimant must "establish[] his current earning capacity" (Copperweld

Tubing Products, Co. v. Workers' Compensation Comm'n, 402 Ill. App. 3d 630, 634, 931 N.E.2d

762, 766, 341 Ill. Dec. 865, 869 (2010)). See also United Airlines, Inc. v. Workers' Compensa-

tion Comm'n, 2013 IL App (1st) 121136WC, ¶ 22, 991 N.E.2d 458 (holding a wage-differential

award must "be determined as of the date of the arbitration hearing" as the Act "does not con-

template multiple figures to be computed and awarded at future dates").       However, we find that

the calculation of a wage-differential award in the first instance presents a different situation than

application of the appropriate maximum rate under the Act.

¶ 17           Here, claimant has failed to cite any authority which provides that the maximum

rate applicable to a claimant's wage-differential award is determined as of the date of the arbitra-

tion hearing. In fact, the cases he relies upon do not address maximum rates of compensation as

set forth in section 8(b)(4). Further, our review of the relevant case law reflects precisely the op-

posite position and shows that "[t]he date of injury *** controls the maximum rate applicable."

Bohannon, 237 Ill. App. 3d at 994, 606 N.E.2d at 530 (finding the date of the claimant's work

injury controlled the maximum rate applicable to the claimant's wage-differential award); see

also First Assist, Inc. v. Industrial Comm'n, 371 Ill. App. 3d 488, 497, 867 N.E.2d 1063, 1071

(2007) (finding the maximum weekly rate allowable for a wage-differential award was the max-



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2015 IL App (1st) 133233WC


imum rate in effect on the date of the claimant's accidental injury). The date of a claimant's acci-

dental injury, rather than the date of hearing, has similarly been used to determine the maximum

rate applicable for other benefit awards under the Act. See Peabody Coal Co. v. Industrial

Comm'n, 259 Ill. App. 3d 356, 361, 631 N.E.2d 422, 426, (1994) (using the date of the claimant's

accidental injury to establish the maximum rate for an award of permanent partial disability

(PPD) benefits); Organic Waste Systems v. Industrial Comm'n, 241 Ill. App. 3d 257, 261, 608

N.E.2d 1243, 1246 (1993) (finding the claimant's accident date determined the maximum rate for

PPD benefits under section 8(b)(4)); George W. Kennedy Construction, Co. v. Industrial

Comm'n, 152 Ill. App. 3d 114, 121, 503 N.E.2d 1169, 1174 (1987) (using the date of an employ-

ee's accidental death to determine the maximum benefit rate under section 8(b)(4)).

¶ 18           Further, although not directly on point, we find the supreme court's decision in

Grigsby v. Industrial Comm'n, 76 Ill. 2d 528, 530, 394 N.E.2d 1173, 1174 (1979), is instructive.

There, the claimant was awarded benefits "based on the maximum rates applicable under the

workmen's compensation statute in effect at the time of the injury." Grigsby, 76 Ill. 2d at 530,

394 N.E.2d at 1174. The claimant sought review, and the sole issue before the supreme court

was "whether the Commission correctly applied the rate of compensation in effect at the time of

[the] claimant's injury or whether it should have applied retroactively the rate in effect at the time

of its decision." Grigsby, 76 Ill. 2d at 531, 394 N.E.2d at 1174. In affirming the Commission,

the court noted that "[a] long line of Illinois decisions has held that the law in effect at the time

of the injury determines the rights of the parties." Grigsby, 76 Ill. 2d at 531, 394 N.E.2d at 1174.

The court also expressly referenced section 8(b)(4), indicating its provisions referred to "the time

of the injury" rather than the date of either the arbitrator or Commission's decision. Grigsby, 76

Ill. 2d at 534, 394 N.E.2d at 1176.



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2015 IL App (1st) 133233WC


¶ 19           After reviewing the relevant case authority, we find the principle of statutory con-

struction relied upon by claimant actually works against him. Case law reflects a clear judicial

determination that the limits on compensation set forth in section 8(b)(4) of the Act, including

maximum rates applicable to wage-differential awards, apply with reference to the date of injury

and not some later point in time. As stated, we must assume that the legislature has acted with

full knowledge of this judicially determined position and, given its failure to amend section

8(b)(4) to provide otherwise, has acquiesced to it.

¶ 20           Additionally, as the employer points out, the portion of section 8(b)(4) at issue on

appeal states it applies "[f]or injuries occurring on or after February 1, 2006." (Emphasis add-

ed.) 820 ILCS 305/8(b)(4) (West 2006). Although claimant dismisses this language as "only

denot[ing] when the 2005 amendments to the Act would begin to apply," we find it is further ev-

idence that that the legislature intended for the date of a claimant's injury to control the maxi-

mum rates set forth in that section.

¶ 21           Finally, on appeal, claimant argues that limiting an employee's wage-differential

award based on the State AWW in effect at the time of injury rather than the time of hearing is

inconsistent with the intent of the Act, which is to thoroughly compensate and financially protect

injured workers. See Cassens, 218 Ill. 2d at 530, 844 N.E.2d at 422 (noting "the Act's overriding

purpose" as being "early and thorough compensation for income lost due to job-related inju-

ries"); Interstate Scaffolding, Inc. v. Workers' Compensation Comm'n, 236 Ill. 2d 132, 146, 923

N.E.2d 266, 274 (2010) (stating "[t]he fundamental purpose of the Act is to provide injured

workers with financial protection until they can return to the work force"). In particular, claim-

ant points out that the State AWW at the time of his hearing would place him "closer to the fi-

nancial condition that he would have been in had the injury never occurred."



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2015 IL App (1st) 133233WC


¶ 22           Here, we cannot dispute claimant's contention that application of the State AWW

in effect at the time of his arbitration hearing would result in compensation closer to his actual

wage differential. However, the purpose of section 8(b)(4) of the Act is to limit recoveries.

Modern Drop Forge Corp. v. Industrial Comm'n, 284 Ill. App. 3d 259, 265, 671 N.E.2d 753, 757

(1996). Under either party's interpretation of section 8(b)(4), the maximum rate set forth therein

will affect wage-differential awards to varying degrees. Depending upon the facts presented in

each particular case, even claimant's interpretation could result in no change to a wage-

differential award, a significant decrease to the award, or something in between. Given these

circumstances, we find claimant's argument unpersuasive and reversal of the Commission's deci-

sion unwarranted.

¶ 23                                  III. CONCLUSION

¶ 24           For the reasons stated, we affirm the circuit court's judgment.

¶ 25           Affirmed.




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