An injured stationary engineer is eligible for a wage differential award to compensate for her reduced earning capacity despite not suffering a reduction in income, an Illinois appellate court has ruled.

Kathy Jenkins worked as a stationary engineer addressing maintenance issues for Jackson Park Hospital and Medical Center in Chicago, court records show. She sustained injuries to her neck, low back and left knee while attempting to enter a locked office through a sliding glass window on Oct. 25, 2005.

It is undisputed that Ms. Jenkins, who filed a workers compensation claim, is permanently and partially disabled, and that she can no longer perform her job duties, according to records. An arbitrator awarded her medical expenses, temporary total disability benefits and penalties at a hearing on Sept. 12, 2006.

Jackson Park Hospital continued to employ Ms. Jenkins as a public safety officer, paying her the same wage she previously earned as a stationary engineer, according to records. So, when the parties appeared before an arbitrator on April 11, 2011, the arbitrator found that Ms. Jenkins wasn't entitled to a wage differential award since her income had not been reduced.

Records show that Ms. Jenkins then sought a review of the arbitrator's decision before the Illinois Workers' Compensation Commission. However, prior to oral arguments before the commission, Jackson Park Hospital terminated her employment, leading her to file an emergency motion to remand the case to the arbitrator and allow additional evidence of her termination.

The commission denied her request, affirming the arbitrator's decision without additional comment, according to records.

Ms. Jenkins appealed the commission's decision to the Circuit Court of Cook County, which reversed the award and remanded the claim to the commission. On remand, the commission said “it found no evidence in the record that warranted altering its prior decision” but entered a wage differential award of $389.60 per week from Feb. 19, 2007 through the duration of her disability, records show.

The circuit court confirmed the commission's decision leading Jackson Park Hospital to again appeal.

Illinois 1st District Court of Appeals on Friday ruled that ruled that Ms. Jenkins is entitled to a wage-differential award to account for her lost earning capacity under Section 8(d)(1) of the Illinois Workers' Compensation Act.

Records show that, under the Act, an injured worker who sustains a disability can be entitled to receive a wage differential award to compensate for reduced earning capacity under Section 8(d)(1) or a percentage-of-the person-as-a-whole award under Section 8(d)(2).

“Whether the claimant has sustained an impairment of earning capacity cannot be determined by simply comparing pre- and post-injury income,” according to the appellate court's ruling. “The commission did not conduct any analysis to determine whether the claimant's post-injury wages reflected her true earning capacity in a competitive job market. On the contrary, at the arbitration hearing, the claimant attempted to present evidence that her income as a public safety officer was not a true representation of her earning capacity, but the commission refused to consider the evidence.”

Evidence included the fact that, although Ms. Jenkins was earning $23.61 per hour as a safety officer for Jackson Park Hospital, other safety officers were earning between $8 and $10 per hour, records show.

“If other employers would not hire the employee with her limitations at a comparable wage level, the post-injury wage cannot be considered an accurate reflection of the claimant's earning capacity,” the ruling states.