April 04, 2007

In a Wage Differential Claim, the Court Found that Wages of Claimant’s Replacement Were Too Speculative

April 04, 2007

Taylor v. Industrial Commission No. 4-06-0412WC

Thomas Taylor, a 44 year old truck driver was unloading groceries at a stop on his pre-determined route.  While pushing a two-wheel cart loaded with groceries, he slipped on a ramp and ultimately underwent surgery on his knee.  He was then assigned to duties as a dispatcher and received an award of $121.49 per week, which equaled two-thirds of the difference between the claimant’s average weekly wage for the year preceding the injury and his current earnings.  The claimant appealed contending that he should receive two-thirds of the difference between his dispatcher’s average weekly wage and the present earnings of the truck driver who had replaced Taylor in the truck driver’s job.

Senior drivers are entitled to the most lucrative routes and have the option of selecting their co-drivers, who were paid by the same method.  Routes were re-bid every six months.  Immediately prior to his injury, the claimant was picked as a co-driver by Roger Jones, the senior driver on his route.  After the claimant was injured, Jones picked Wes Trosper as the claimant’s replacement.  The claimant testified that Jones intended to replace Trosper in the next bid, which would thereby result in a reduction of Trosper’s earnings thereafter.

The claimant sought to use Trosper’s wages as an accurate reflection of what the claimant would be earning but for his injury.  The employer maintained that, in light of the frequent bidding process and in light of the claimant’s relative lack of seniority, it was speculative to assume that the claimant would be earning the same amount as Trosper.  The court agreed with the Commission decision that Trosper’s earnings were too speculative to be used as a basis for the claimant’s wage loss claim.

The court stated:

Here the question is not only the rate of pay the claimant would have made, but whether he would have continued to be chosen to work the more lucrative routes.  The Commission found that it would be too speculative to assume that the claimant would have continued to work the more lucrative routes.  This called for the Commission to make inferences from the undisputed facts.  We cannot say that the inferences drawn by the Commission in determining that it was too speculative to use Trosper’s earnings to determine what the claimant’s earnings would have been were against the manifest weight of the evidence.

Editor’s Note:

In our August, 2006 Newsletter, your Editor described a different result obtained in theMorton’s of Chicago case where the court permitted the claimant to use the difference between the claimant’s current salary and the current salary of a fellow employee who had worked with the claimant prior to the accident.  In that case, a waitress was unable to resume her former job and became a paralegal earning $34,000 per year.  The claimant attempted to utilize the present earnings of Ralph Lotspeich, a fellow server who was presently earning $50,000 per year.  Other servers reported similar increases.  The court agreed with the claimant that the earnings of the fellow server were not too speculative, stating:

Based on Lotspeich’s wage increase and the average wage increase for servers at Morton’s, we conclude that the Commission could reasonably infer that the claimant’s salary would have increased 13% from 1998 to 2000.  Accordingly, the Commission’s decision to award the claimant wage differential benefits was not based upon conjecture or speculation and is not against the manifest weight of the evidence.

The different finding in the two cases is based on speculation versus certainty.  Thomas Taylor testified that his replacement was certain to be replaced and as a result his wage loss claim needs to be based on his actual earnings before versus those after the accident.  With reference to the Morton’s waitress, she could point to a fellow server whose earnings were identical to hers before the accident and in two years had increased to $50,000.

Taylor v. Industrial Commission, No. 4-06-0412WC, decided March 8, 2007

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