February 02, 2007

Wage Loss Claim Approved Based on Estimated Compensation Obtained by Investigator

February 02, 2007

First Assist, Inc. v. Industrial Commission No. 4-06-0206WC

Mary Khatri, employed by First Assist, a medical clinic, began her employment in June of 1991.  She performed the services of an operating nurse which duties consisted of assisting doctors during surgery, including the handling of surgical instruments but also involving lifting of patients on and off the operating table.  On January 6, 2000, while transferring a 350 pound patient from the operating table to a stretcher, she felt a pop in her left shoulder.  She immediately went downstairs to the Memorial Medical Center emergency room and sought treatment.  Thereafter, she began a course of treatment beginning on January 10, 2000 until January 3, 2002, during which time she saw a number of physicians because of complaints in the left shoulder.  She underwent an arthroscopic subacromial decompression and a left distal clavicle resection.  Physical therapy provided little relief.  Just prior to her return to work, she was examined by the employer’s selected physician who stated that the claimant’s surgery had a “failed outcome.”  No further surgery was prescribed and she was placed on permanent restrictions which prevented lifting of more than 25 pounds and any activities above shoulder level with the left arm.

On November 13, 2002, she obtained a job within her restrictions as an office nurse for Cardinal Respiratory at a salary of $16 per hour.  She finally secured a position with Capital Care as a staff nurse in a nursing home earning $19 per hour and she was engaged in that employment at the time of the arbitration hearing.

To establish a current value of her services, Bob Hammond, a vocational rehabilitation consultant for the claimant, telephoned First Assist and learned from speaking to a First Assist employee that First Assist was now paying operating room nurses $43 per hour as of the date of the arbitration hearing.

The arbitrator denied the claim for wage differential on the basis of inadequate proof.  On review, the full Commission modified the arbitrator’s decision and awarded wage differential benefits in the sum of $640 per week, with the Commission calculating the wage differential based on the claimant’s present salary of $19 per hour as a staff nurse at a nursing home and the current rate of $43 per hour allegedly being paid by First Assist to operating room nurses as established by Hammond’s testimony.

First Assist objected to the testimony of Hammond because Hammond had not obtained the identity of the nurse recruiter who took his telephone call.  According to Hammond that individual who answered identified him as Glen and stated that he was a nurse recruiter.

The appellate court accepted the claimant’s testimony, stating:

The claimant’s attorney laid a proper foundation for Hammond’s phone conversation with First Assist’s nurse recruiter.  Hammond testified that he obtained the number for First Assist from the phone directory, that he dialed the number, and the person to whom he spoke identified himself as Glen, the nurse recruiter.  The fact that Hammond did not recognize the voice of the person to whom he spoke and does not even know his full name does not render the evidence inadmissible.  It is sufficient that Hammond called First Assist’s business phone number which he obtained from a phone directory and spoke to an individual regarding First Assist’s business activities.

On the questions of whether Hammond’s testimony regarding the content of his conversation is hearsay, we note the long-standing rule that admissions made by a party, or on its behalf, are admissible as exceptions to the hearsay rule.  When, as in this case, the statement has been made by an employee of a party, the test for the application of the party-admission rule is whether the statement was made during the employment relationship and concerning matters within the scope of that employment.  The statement of ‘Glen,” First Assist’s nurse recruiter, satisfied both requirements.

The court further refused to disallow the claimant’s testimony as to the number of hours earned per week and the claimant’s alleged failure to conduct a more thorough job search.  However, the court did refer the matter of the wage rate back to the Commission.  The decision fixing the claimant’ wage differential award at $640 per week was incorrect because the wage differential applicable to this case would be the maximum PPD rate in effect on the accident date, namely $485.65 per week.

First Assist, Inc. v. Industrial Commission, No. 4-06-0206WC, decided January 31, 2007

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