Wage Differential in Workers' Compensation

What is a Workers' Compensation Wage Differential case?

The difference it the type of settlement an employee is entitled to depends on whether he or she can return to work for the employer. If your doctor allows you to return to work, then settlement is determined as a percentage of the body part injured and the schedule of weeks each body part is worth under Section 8(e). However, there are many times when an employee sustains an injury that results in him or her not being able to return to their pre-injury position. This occurs most frequently after someone has a surgery, reaches a plateau in physical therapy and then the doctor orders a Functional Capacity Evaluation (FCE). This is a test used to determine a person's capabilities and ability to return to work. Essentially, it is an extensive four to six hour physical therapy evaluation done by an expert trained as a therapist in this field.

Every job has a job description which sets forth physical requirements under the U.S. Department of Labor. Those typically fall into a range of light, medium or heavy. An employee that works as a truck driver is generally working a medium physical demand level job.  The FCE technician will know the physical demand level of each employee's job. The technician will then compare the employees test results with the physical demand level required of the job and determine if they have met the job requirements.

After the FCE test, the employee typically returns to his or her physician who then reviews the FCE report from the therapist and will make a final permanent restriction. If this restriction does not fall in line with what the job requires, then the employee cannot return to the job. In this case, the employee is entitled to additional benefits under Section 8d(1). For example, if someone has a back injury, they may plateau in physical therapy with lifting a certain weight with a permanent weight restriction.

Benefits for Wage Differential Cases

The benefits available to an injured worker in Illinois who cannot return to the same job are unique in wage differential cases.  In these types of workers' compensation cases, the employer's insurance may be required to provide vocational rehabilitation. Depending on what job the injured worker can find, the employer may also be responsible for paying a wage differential benefit to compensate for the difference between the wage the worker was earning before the injury and the wage they earn after being given a permanent restriction.

Vocational Rehabilitation

Under the Illinois Workers' Compensation Act, Section 8a as well as 8d(1), an employee has a right to receive help finding a new job, which is called Vocational Rehabilitation.  Usually this is done through a representative chosen by the parties. While going through the vocational process, an employee is also still entitled to payment for his or her time off work until they can find a job within their restriction. This benefit is called “Maintenance” and is paid at the same 2/3 of an employee's average weekly wage.

Wage Differential

When one cannot return to their job and they have to find a new job, the new job typically pays less money (because the worker will need to choose a job for which he or she has little or no experience and the job will have to accommodate the new restrictions). In this case, the law protects the employer from loosing that loss over their lifetime and requires the employer (insurance company) to pay for 2/3 of the difference in lost pay up to the age of 67. If an employee for example was making $1,000 a week and has an injury that does not allow them to return to the job and thereafter, they find a job making only $500 a week, they are entitled to $333.33 a week (in addition to making their $500 a week earnings on the new job) up through age 67.

Most often an attorney will attempt to compute the differential over an employee's lifetime up to age 67 and ask for a one-time lump sum settlement. When doing so, there will have to be some reductions made to account for the present value of settlement (getting all of the money now as opposed to waiting weekly over many years).

Our office can discuss and walk through these calculations with you in detail so that you have a better idea of what your rights are if you are in this situation where you cannot return to work due to a serious injury.  We frequently handle these difficult cases and offer a free, no obligation consultation with one of our attorneys. Call us or click here to request a FREE consultation.


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