Food Service of Chicago v. IWCC: Case Law

Two issues addressed by this decision: 1) when a wage differential award is appropriate and, 2) the applicable standard of review of a Commission decision.

Claimant sustained a left knee meniscal tear in a work-related accident that occurred 11/6/09, and underwent surgical repair 1/20/10 with a post-op diagnosis of medial meniscal tear in posterior horn of the left knee with chondromalacia of the medial femoral condyle. Claimant returned to work 2/22/10, but returned to the doctor 3/29/10 with significant pain. Treatment resumed until 7/22/10. An IME was done 7/31/10 which found claimant capable of returning to work with regard to his work injury and noted that the degenerative condition of the claimant’s knees was not caused by, aggravated, or accelerated by the work accident. An updated IME from 11/23/10 noted that restrictions were not necessary for the work injury, but they were reasonable for the unrelated degenerative disease.

The employer did not permit the employee to return to work as a delivery driver. At a meeting held by request of the employer, employee was given a letter that stated that he could not return to his prior position of delivery driver as a result of his personal medical condition. Employee was offered a position as a security guard rather than be terminated.

Employee testified at hearing on 9/7/11 that his knee was pain free and as good as it was before the surgery. He also testified that he had no medical work restrictions to return to regular duties as a delivery driver.

Arbitrator found that the employee sustained a torn meniscus in his left knee which arose out of and occurred in the course of his employment, but the current degenerative condition of the left knee was not related to the work accident.

Employer and employee both sought review with the Commission. The Commission affirmed and adopted the arbitrator’s decision on 10/24/12.

Employee sought review of Commission’s decision. On 12/23/13, the circuit court found that the Commission’s decision was against the manifest weight of the evidence as it did not properly consider the opinion of the treating doctor regarding the degenerative condition. The case was then remanded to Commission with instructions for a wage differential award.

Commission issued a finding on 10/28/14 specifically referencing the treating doctor’s findings but awarding a wage differential in accordance with the circuit court’s remand order.

Both employer and employee sought review with the circuit court; the employee appealing the wage differential calculation and the employer arguing the finding of causal connection between degenerative condition was work related was against the manifest weight of the evidence. On 8/10/15 the circuit court reversed the 10/28/14 decision on the basis that the wage differential was miscalculated.

The Commission issued an order 4/15/16 noting that it was required by the circuit court to find a causal connection between the work injury and the degenerative condition and updated the wage differential calculation.

The circuit court upheld the Commission’s 4/15/16 decision on appeal from both parties in its 2/16/17 decision. The employer appealed.

A wage differential is appropriate if a claimant becomes partially incapacitated from pursuing his usual and customary line of employment as the result of a work related accidental injury. The claimant testified at trial that his injured knee felt as good as it did before the surgery. He also testified that he had no medical restrictions to work as a delivery driver.

This employee argued he was entitled to a wage differential because the employer refused to allow him to return to work as a delivery driver due to his medical condition. The circuit court found that there is nothing in the Act that requires a claimant be medically incapacitated in order to receive a wage differential award.

Yet, the appellate court refused to confirm that premise. The fact that the employer did not permit the employee to return to his previous position could be relevant to determining the employee’s incapacity; however, this claimant testified that he was ready, willing, and able to return to work and that his physician authorized him to return without restriction. Further, the appellate court also clarified that in order to qualify for a wage differential, an employee must be partially incapacitated from returning to his prior job duties as a result of the actual injury rather than an employer’s reasoning for not returning him/her to a pre-injury position.

The extent of the disability is a question of fact to be determined by the arbitrator and the Commission.

The appellate court reaffirmed the standard of appeal the circuit court must apply when reviewing Commission decisions. The Commission’s findings of fact may not be disturbed unless they are against the manifest weight of the evidence, i.e. the opposite conclusion must be clearly apparent.

In this case, the circuit court overstepped its power by reversing the Commission’s original finding and remanding it back with directions to award a wage differential.

Take-away:

- Wage differential awards are heavily reliant on the facts and are determined on a case by case basis.

- The appellate court did not directly address the circuit court’s finding that an individual didn’t necessarily need to be medically incapacitated from returning to a pre-injury position. Instead, it only found that an employee must be medically restricted from returning to the pre-injury position “as a result of the injury” rather than an employer’s decision  not to bring the employee back to the same pre-injury position for the purposes of exposure to a wage differential.

- The proper standard of review on appeal from the Commission is against the manifest weight of the evidence, and findings of fact should not be disturbed on appeal if they do not meet that standard.

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