News

June 10, 2009

On April 19, 1995, Jack Carson, a truck driver employed by Beelman Trucking, was involved in a serious motor vehicle accident resulting in severe and permanent injuries.  He suffered a burst fracture at C5-6 resulting in a complete loss of use of both legs and the near complete paralysis of the left arm.  He also sustained an injury to the right arm which ultimately resulted in an above-elbow amputation of the arm.  The spinal injury resulted in a complete loss of sensation below the level of his mid chest and paralysis of his left arm below the shoulder level.  The right arm amputation did not permit him to utilize a prosthesis of that arm.

The Commission award included the following:

1. Total disability of both legs resulting in two-member permanent disability award, pursuant to Section 8(e)(18);
2. Total loss of use of the right arm for the right arm amputation, including inability to utilize any prosthesis, resulting in an award of 300 weeks, pursuant to Section 8(e)(10);
3. Total loss of use of the left arm because of paralysis resulting in an award of 235 weeks, pursuant to Section 8(e)(10);
4. Medical benefits of $12,674 for the acquisition of a voice-activated computer environmental control unit which resulted in additional safety and security and permitted him to operate his telephone, television set and lamp; and
5. $708 for a handicapped modification endorsement of his automobile insurance premium.

The circuit court confirmed the decision of the Commission and the employer appealed.

The first issue is whether the Commission erred in awarding specific loss benefits under Section 8(e)(10) in conjunction with the statutory permanent disability award under Section 8(e)(18) where the injuries were incurred in a single accident. The court summarizes the two pertinent sections as follows:

The number of weeks of compensation varies depending on the specific loss suffered by the worker.  Applicable to this case is subsection (10) of section 8(e), under which the Commission awarded Carson benefits for the loss of each of his arms.  Section 8(e)(10) provides in part:

Arm-235 weeks. *** Where an accidental injury results in the amputation of an arm above the elbow, compensation for an additional 15 weeks shall be paid, except where the accidental injury results in the amputation of an arm at the shoulder joint, or so close to shoulder joint that an artificial arm cannot be used, *** in which case compensation for an additional 65 weeks shall be paid.

Not every subsection of section 8(e) provides for compensation based on a single lost member.  The other subsection at issue in this case provides for certain combinations of losses.  Section 8(e)(18) of the Act provides:

The specific case of loss of both hands, both arms, or both feet, or both legs, or both eyes, or of any two thereof, or the permanent and complete loss of use thereof, constitutes total and permanent disability, to be compensated according to the compensation fixed by paragraph (f) of this Section.  These specific cases of total and permanent disability do not exclude other cases.

The court emphasized that the two-member total disability award would not prevent the claimant from obtaining employment without disturbing the award.  The court recognized the particular non-literal meaning of “total” and “permanent” disability, stating:

Disability under section 8(e)(18), by contrast [to ‘complete disability’], is ‘permanent and total’ only by legislative pronouncement; it is not inconsistent with a continuing ability to work, and in that event the pension mandated for it is not to be affected by the employee’s return to work.

The court added further:

The loss of Carson’s legs immediately entitled him to compensation under section 8(e)(18).  Had that been the extent of his injuries, Carson would have retained at least some earning capacity.  Carson may have even found further employment … However, Carson’s earning capacity was further reduced when his workplace accident also caused the loss of his right arm and the loss of use of his left arm.

As to whether the worker could choose to itemize his lost members as cases of specific loss rather than limit his compensation to the statutory total and permanent disability lifetime benefit provided by Section 8(e)(18), the court answered in the negative and added:

In this case, Carson does not seek to bypass recovery under section 8(e)(18) and recover for three specific losses.  Nor does he seek a double recovery for the loss of his legs under both section 8(e)(18) and section 8(e)(12) (providing 200 weeks of compensation for the loss of a leg).  Instead, Carson contends that he is entitled to recover under section 8(e)(18) for the loss of both legs, and recovery under section 8(e)(10) for the loss of earning capacity as a result of the loss of each arm.

With reference to issues 4 (acquisition of a voice-activated computer environmental control unit) and issue 5 (additional insurance premium) the supreme court affirmed the appellate court finding in favor of the claimant, stating:

The arbitrator here in part relied on evidence from Carson’s primary physician, which indicated the computer system would be set up for therapeutic purposes.  According to the arbitrator, the physician ‘emphasized the importance of this device as it relates to the [Carson’s] mental health and general wellbeing.’  Thus, the arbitrator concluded that ‘[Carson] has lost almost complete use of his body and is totally dependent on others for all movement and activity.  The computer system provides his only vestige of autonomy.  When so much is taken away, the psychological value of any remaining independence is obviously magnified.

Carson did not seek expenses for fuel, repair of total of the vehicle.  Nor did Carson seek an award which covered the entirety of his van’s insurance premium.  Instead, Carson sought only the difference between what an owner of an unmodified van would pay and what the insurance company charged for insuring the modifications to Carson’s van that his disability requires.  Based on the record, we cannot say that the Commission’s factual determination that the insurance premium is a necessary and reasonable medical expense is against the manifest weight of the evidence.

Editor’s Note:

The decision of the supreme court in permitting a two-member permanent total based on Section 8(e)(18) and the specific losses to both arms based on Section 8(e)(10) is not surprising.  The law had been clear that a two-member permanent total disability award provided in Section 8(e)(18) did not prevent the claimant from returning to work even if it were the same job.  The return to work did not in any way reduce the two-member permanent total disability award.

However, the reference to the insurance on the claimant’s vehicle is important because it suggests that the employer need not purchase the vehicle but only the required modifications to permit the claimant’s use.  The Commission has in the past actually required the employer to purchase the van, as well as paying for the modifications.

Beelman Trucking v. Illinois Workers’Compensation Commission, et alNo. 106680, decided May, 21, 2009

Frank J. Wiedner, Editor Wiedner & McAuliffe, Ltd One North Franklin, 19^th Floor Chicago, IL 60606 (312) 855-1105