Illinois worker fails to prove inability to return to his former job
The Illinois Workers' Compensation Commission held that and Illinois worker's permanent disability award was limited to 5% loss of use of a person as a whole pursuant to Section 8(d)(2) of the Illinois Workers' Compensation Act.
After returning from an out-of-town family emergency, the worker chose not to work for the defendant. Also, the worker failed to prove a permanent inability to return to his former job.
Where a worker no longer has light-duty work restrictions, the fact finder will not assume that the employer would not have permitted him to return to his regular job. The worker must prove a permanent inability to return to his former job in order to qualify for a wage differential award under Section 8(d)(1) of th WCA.
The worker, a driver and furniture mover, suffered cervical and low back pain after the vehicle in which he was a passenger was struck from behind Nov. 1, 2004. He was diagnosed with cervical and lumbar strains. Medication and physical therapy was prescribed. The emploeyr provided light-duty work. The worker was paid a differential between his light-duty salary and his temporary total disability rate. He subsequently had a family emergency and returned to Mexico for one month. Pursuant to company policy, he was required to reapply to the company after missing more than one month from work. He was hired for lighter work, which included answering phones. He elected not to return to his employer and instead obtained new employment delivering beds for a mattress business. The arbitrator found the claimant entitled to permanent disability under Section 8(d)(2) for 5% loss of use of a person as a whole.
In affirming, the Commission rejected a wage differential award. The worker testified that he changed jobs after his return from Mexico because he would have had to return to the light-duty position, which was paying him less than what he earned on fully duty. The Commission found the worker's reaosn for changing jobs to be unpersuasive, as he was paid a temporary wage differential award while he was working light duty before he left for Mexicao
