IL Comp Update – Pathway to Challenge Wage Differential Awards

ILLINOIS WORKERS COMPENSATION UPDATE

The Illinois Court of Appeals reversed a wage differential award from the Commission last month in the  Beverage v. IWCC  (Click HERE to read the decision).    In doing so, the Court of Appeals laid out a pathway for challenging wage differential claims.

Based on this decision, as well as many other Court of Appeals opinions, the following is set of questions to answer and tips to follow to evaluate whether wage differential benefits are owed:

1. Is there a reduction in wages (such as a change of work status or an inability to return to work)?

• If yes, then possible entitlement to wage differential benefits.

2. Is claimant in a vocational rehab plan or self-directed job search?

• If yes, benefits are owed. If no, then no maintenance benefits are owed. (“maintenance is awarded incidental to vocational rehabilitation, an employer is obligated to pay maintenance only “while a claimant is engaged in a prescribed vocational-rehabilitation program.” W.B. Olson, Inc., 2012 IL App (1st) 113129WC, ¶ 39, 366 Ill.Dec. 960, 981 N.E.2d 25. “An employee’s self-directed job search or vocational training may constitute a vocational-rehabilitative program.“ Roper Contracting v. Industrial Comm’n, 349 Ill. App. 3d 500, 506, 285 Ill.Dec. 476, 812 N.E.2d 65 (2004) )

3. Does the claimant have sufficient skills to obtain employment without further training or education (usually determined by a vocational assessment)?

• If yes, no further benefits are owed. (“if the injured employee has sufficient skills to obtain employment without further training or education, that factor weighs against an award of vocational rehabilitation.” National Tea Co. v. Industrial Comm’n, 97 Ill. 2d 424, 432, 73 Ill.Dec. 575, 454 N.E.2d 672 (1983). )

4. Has the claimant indicated that he/she does NOT intend or has no desire to return to work?

• If yes, no further benefits are owed. (“an injured employee is generally not entitled to vocational rehabilitation if the evidence shows that he does not intend to return to work, although able to do so.” Schoon, 259 Ill. App. 3d at 594, 197 Ill.Dec. 217, 630 N.E.2d 1341)

5. What can I do to terminate wage differential benefits?
In situations where benefits, like the Energizer bunny, keep going and going, here are two actions to take:

• First, schedule a vocational assessment to determine if the claimant can obtain employment in the open labor market. If so, benefits can be terminated.

• Second, if the claimant is simply emailing or calling employers and generating a job search log, but is doing nothing more than this, challenge the “appropriateness” of the self-directed job search. The Court of Appeals in Roper states: “the rule required the employer to provide rehabilitation only if “appropriate.” (see also 50 Illinois Administrative Code 9110.10.)

• The Court of Appeals has held that an employee’s self-directed job search or vocational training MAY constitute a vocational-rehabilitative program (See Roper)…but this doesn’t mean that ALL self-directed job search programs are “appropriate”.

If you have any cases where this might apply, please let me know and we can discuss this further.