April 02, 2008

Petitioner Denied Specific Loss Award in Addition to Two-Member Permanent Total Disability Benefits

April 02, 2008

Beelman Trucking v. Workers’ Compensation Commission

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.

  1. The arbitrator’s award included the following: Total disability of both legs resulting in a two-member disability award;
  2. Total loss of use of the right arm for the right arm amputation resulting in an award of 250 weeks;
  3. Total loss of use of the left arm because of the left arm paralysis resulting in an award of 235 weeks;
  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.

Upon review, the Commission affirmed and adopted the arbitrator’s decision with one modification.  The Commission increased the award of the right arm from 250 to 300 weeks because of his inability to utilize a prosthetic device.  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.  Section 8(e)(18) provides as follows:

The specific case of loss of both hands, both arms, or both feet, or both legs, or both eyes, or of any two hereof, or the permanent and complete loss of the 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.

Any employee who has previously suffered the loss of permanent and complete loss of the use of any of such members, and in a subsequent independent accident loses another or suffers the permanent and complete loss of the use of any one of such members[,] the employer for whom the injured employee is working at the time of the last independent accident is liable to pay compensation only for the loss of permanent and complete loss of the use of the member occasioned by the last independent accident.

In finding that the claimant could not receive specific loss awards in addition to the two-member permanent disability, the court, citing prior decisions, stated:

[I]t would be specious reasoning to conclude that the loss of more than two members would not constitute permanent and total disability, but revert to a condition of specific loss.  The loss of the additional members over and above the two specified in the act cannot convert such statutory permanent and total disability into a case of specific losses.  That the employee disabled by the loss of more than two members may sustain greater hardship than an employee who has lost only two members should be recognized by the legislature and provision made for him in the act.  However, this circumstance does not modify his condition into one of specific losses under the present law, or give him the right to elect whether he will itemize his disabilities or claim permanent total disability.  There is no provision in the act giving any employee previously handicapped or otherwise, the right to elect whether he will claim compensation for the cumulative loss of members sustained in one accident or claim statutory permanent and total disability.  Any such interpretation of the act would render meaningless both the provision relating to the sum payable to permanent and total disability and the provision defining the loss, or loss of use of two members, or the sight of both eyes as permanent total disability.  An employee so disabled could either add up the compensation due for loss or loss of use of members sustained in an accident and compare that sum with the amount payable to him for permanent total disability, and then label his condition so as to procure the greatest amount of compensation.  It is evident that such a procedure is not within the purport of the act.

The next issue involved the Commission’s decision to award the voice-activated computer under Section 8(a) of the Act which required the employer to pay reasonable medical and rehabilitative services.  After noting that Illinois had interpreted Section 8(a) to include nursing care, home care, and services for home modification, the court stated:

In this case, Dr. Lieb, the occupational therapists, and the rehabilitative consultant strongly recommended the computer system and the environmental control unit as reasonable and necessary appliances to improve the claimant’s physical and psychological health and well-being.  There is overwhelming competent evidence in the record to support the Commission’s conclusion that the appliances were reasonable and necessary to relieve the effects of the injury.  The commission’s award is in keeping with the purpose of section 8(a) and the overall purpose of the Act to fully compensate an employee for work-related injuries.  In this case, the computer and environmental control system are appliances that have restored some independent function to Carson.  These devices have benefitted his physical and psychological health and well-being.  The award is clearly warranted under the unique circumstances in this case.

The final question concerned the award for that portion of the automobile insurance premium covering the handicapped modification endorsement.  The court noted that the employer had provided Carson with a van and agreed that it would make no sense to exclude from the employer’s 8(a) obligation the duty to cover that portion of the insurance premium which referred to modifications necessary to accommodate Carson’s disability.

In a dissenting opinion, Justice Donovan concluded that the Commission award for the specific loss for the two arms was supported by the facts and the law.  He pointed out that the claimant’s award under Section 8(e)(18) did not require that the employee be wholly and permanently incapable of work.  His dissent emphasized:

In the case at bar, the claimant sustained numerous injuries in a single accident.  It is beyond debate that the injury to the cervical spinal and the degloving injury to the right arm are concurrent and distinct injuries.  The degloving injury to the right arm required multiple surgeries, including an above-elbow amputation.  It resulted in a specific loss of the type contemplated under section 8(e)(10).  The C5-6 burst fracture resulted in the complete loss of use of the claimant’s legs and the near-complete paralysis of his left arm.  A statutory permanent total disability award under section 8(e)(18) of the Act is appropriate because there is no evidence that the disability resulting from the C5-6 burst fracture would have left the claimant wholly incapable of work.  The degloving injury to the right arm resulted in an additional impairment to the claimant’s earning power and warranted additional compensation.   This is not a case where the maxim “a workman can only be 100% disabled” applies.  There is no evidence that either injury, by itself, would have left the claimant without a market for his skills, and thus completely unemployable.  To declare, as the majority has, that a statutory permanent and total disability award under section 8(e)(10) precludes an additional permanency benefit where a distinct injury results in additional impairment of earning power is to create an exception to the employer’s liability that violates the letter and spirit of the Act.

Editor’s Note:

The claimant has apparently not filed a leave to appeal to the supreme court.  While the majority opinion suggested that the payment of specific loss in addition to the two-member total disability would allow the claimant to elect whether he would claim compensation for the loss of all members sustained in one accident or claim total disability, the majority felt that such a procedure was not available under the Act.

Beelman Trucking v. Workers’ Compensation Commission No. , decided March 31, 2008

Frank J. Wiedner, Editor Wiedner & McAuliffe, Ltd One North Franklin, #1900 Chicago, IL 60606 (312) 855-1105