{ "id": 249120, "name": "TED ALBRECHT, Appellant, v. THE INDUSTRIAL COMMISSION et al. (Chicago Bears Football Club, Appellee)", "name_abbreviation": "Albrecht v. Industrial Commission", "decision_date": "1995-03-17", "docket_number": "No. 1\u201494\u20141622WC", "first_page": "756", "last_page": "762", "citations": [ { "type": "official", "cite": "271 Ill. App. 3d 756" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "398 Ill. 528", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 2460702 ], "weight": 2, "year": 1993, "pin_cites": [ { "page": "532" }, { "page": "532" } ], "opinion_index": 0, "case_paths": [ "/ill/398/0528-01" ] }, { "cite": "144 Ill. App. 3d 1003", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3500449 ], "pin_cites": [ { "page": "1017" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/144/1003-01" ] }, { "cite": "198 Ill. App. 3d 485", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2475149 ], "weight": 3, "pin_cites": [ { "page": "493" }, { "page": "493" }, { "page": "493" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/198/0485-01" ] }, { "cite": "165 Ill. App. 3d 550", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3614845 ], "weight": 2, "pin_cites": [ { "page": "559" }, { "page": "560" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/165/0550-01" ] }, { "cite": "89 Ill. 2d 432", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5494602 ], "pin_cites": [ { "page": "437" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/89/0432-01" ] } ], "analysis": { "cardinality": 677, "char_count": 16711, "ocr_confidence": 0.726, "pagerank": { "raw": 1.4597259378960283e-07, "percentile": 0.6570746016466598 }, "sha256": "c8ead9ed54cdc88433d79b29d18d3b3f2ea9d37811ea991e107ba910cf8041bc", "simhash": "1:f8c085ac643095da", "word_count": 2782 }, "last_updated": "2023-07-14T19:52:56.134317+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "TED ALBRECHT, Appellant, v. THE INDUSTRIAL COMMISSION et al. (Chicago Bears Football Club, Appellee)." ], "opinions": [ { "text": "JUSTICE COLWELL\ndelivered the opinion of the court:\nClaimant, Ted Albrecht, appeals the trial court\u2019s affirmance of the Industrial Commission\u2019s decision which affirmed the arbitrator\u2019s finding that claimant was not entitled to a wage-loss differential pursuant to section 8(d)(1) of the Workers\u2019 Compensation Act (Act) (820 ILCS 305/8(d)(1) (West 1992)). Claimant appeals, alleging that the trial court erred in applying section 8(d)(2) of the Act and that the trial court was required to award compensation to claimant under section 8(d)(1) of the Act since the elements of that paragraph were established. The issue of whether a wage-loss differential award under section 8(d)(1) is available to professional athletes is one of first impression in Illinois.\nThe record indicates that claimant was a first-round draft choice of the Chicago Bears Football Club (Bears) in 1977. Claimant played as an offensive lineman for five seasons from 1977 through 1981. On April 2, 1982, claimant sustained an L5-S1 disc herniation and an L4-L5 bulging disc after performing \"leap frog\u201d exercises at the Bears training camp. Dr. Henry Apfelbach, an orthopedic surgeon, treated claimant between April 1982 and May 1983. Although Dr. Apfelbach released claimant to resume his previous job, he gave claimant a 50% chance of achieving further success as a professional football player due to claimant\u2019s back surgery and the inactive period following the operation. Claimant was on injured reserve for the 1982 season. He was paid a salary but did not play. Claimant\u2019s earnings were $130,000 for 1982, his last year as a professional football player.\nClaimant resumed practicing with the Bears at the training camps in 1983 but soon became aware that he was too slow and stiff from his injury to be physically capable of satisfactory performance. Claimant decided to voluntarily resign from professional football. Thereafter, he began a travel service business. Claimant also worked as a sportscaster. He earned approximately $80,000 in 1983, $80,000 in 1984, $87,000 in 1985, and $36,000 in 1986. The evidence indicates that the other Bears offensive linemen who played during this period were paid considerably more than claimant\u2019s earnings.\nOn June 28, 1991, the arbitrator awarded claimant temporary total disability benefits for 674/7 weeks and found claimant was permanently disabled to the extent of 50% under section 8(d)(2) of the Act. The arbitrator acknowledged that claimant was \"forced to change careers\u201d due to his injury but nonetheless determined that claimant was not entitled to a wage-loss differential award under section 8(d)(1) of the Act (820 ILCS 305/8(d)(1) (West 1992)). The arbitrator noted that claimant has \"good executive skills, ambition and the willingness to work hard to make his business succeed and his side jobs to prove lucrative. Because his earning [sic], except for a drop in 1986, show a steady rise beginning in 1983, 1984 and 1985 *** and in the Arbitrator\u2019s view, will continue to show an increase an award under (d \u2014 1) of \u00a7 8 makes little sense.\u201d The arbitrator determined that the only way to fairly judge claimant\u2019s earnings was to compare claimant\u2019s 1982 earnings with those he earned in later years. The arbitrator concluded that \"[ujsing other lineman\u2019s [sic] earnings as comparable is unfair because no player is guaranteed selection to the team even if he is healthy.\u201d Claimant appealed the denial of the section 8(d)(1) wage differential award, and the Bears appealed the award of 50% loss of man as a whole under section 8(d)(2) of the Act.\nOn January 29, 1993, the Commission affirmed that portion of the arbitrator\u2019s decision denying an award under section 8(d)(1) of the Act. The Commission reduced the arbitrator\u2019s award from 50% man as a whole to 30% man as a whole under section 8(d)(2) of the Act.\nClaimant filed a complaint for review in the circuit court regarding the Commission\u2019s refusal to provide a section 8(d)(1) wage differential award. The trial court confirmed the Commission\u2019s decision. In its memorandum decision, the trial court noted that the usual trade contemplated for an award under section 8(d)(1) is that which can span the lifetime of a claimant. The trial court referred to testimony at the arbitrator\u2019s hearing from members of the Bears organization which indicated that the average playing time of an offensive lineman is less than 10 years. The trial court stated that \"[f]rom the moment (claimant) started playing football, (claimant) was in a position of temporary employment, not a career where he could anticipate continued employment as long as he desired.\u201d The trial court concluded that any presumption that \"but for\u201d his injury claimant could have continued playing football is not applicable. The trial court also found that claimant failed to prove an impairment of earning capacity. The court noted that claimant\u2019s line of work would have been over before the time of hearing and his earning capacity as a football player would have ended. The court concluded that \"[w]here no evidence exists that Petitioner would have continued in his usual and customary line of employment, earning his pre-injury wages, an award of wage differential is not appropriate.\u201d\nThe sole issue on appeal is whether the trial court\u2019s refusal to apply section 8(d)(1) to the facts of this case was error as a matter of law. We conclude that a wage-loss differential award should have been entered in favor of claimant as a matter of law.\nSection 8(d)(1) provides:\n\"If, after the accidental injury has been sustained, the employee as a result thereof becomes partially incapacitated from pursuing his usual and customary line of employment, he shall, except in cases compensated under the specific schedule set forth in paragraph (e) of this Section, receive compensation for the duration of his disability, subject to the limitations as to maximum amounts fixed in paragraph (b) of this Section, equal to 662/3 % of the difference between the average amount which he would be able to earn in the full performance of his duties in the occupation in which he was engaged at the time of the accident and the average amount which he is earning or is able to earn in some suitable employment or business after the accident.\u201d 820 ILCS 305/8(d)(l) (West 1992).\nWe note that such \"wage loss\u201d provisions were the predominant theories of compensation in the original worker\u2019s compensation statutes in this country. (1C A. Larson, Workmen\u2019s Compensation \u00a7 57.14(b), at 10 \u2014 76 (1993).) Although \"schedule principles\u201d later dominated the field, the \"wage loss\u201d principle has reemerged in recent years since scheduled awards are not always fair or certain. General Electric Co. v. Industrial Comm\u2019n (1982), 89 Ill. 2d 432, 437.\nIn order to qualify for a wage differential award under section 8(d)(1), claimant must prove (1) partial incapacity which prevents him from pursuing his \"usual and customary line of employment,\u201d and (2) an impairment of earnings. (820 ILCS 305/8(d)(1) (West 1992).) The purpose of this section is to compensate the injured employee for his reduced earning capacity, and if the injury does not reduce his earning capacity, he is not entitled to such compensation. (Fritz Electric Co. v. Industrial Comm\u2019n (1988), 165 Ill. App. 3d 550, 559.) The wage differential is to be calculated on the presumption that, but for the injury, the employee would be in the full performance of his duties. (Old Ben Coal Co. v. Industrial Comm\u2019n (1990), 198 Ill. App. 3d 485, 493.) The award is to be based \"on the difference between the 'average amount\u2019 the employee would be able to earn in the full performance of his duties in the occupation in which he was engaged at the time of injury and the 'average amount\u2019 he is earning or is able to earn in some suitable employment after his injury.\u201d (General Electric Co. v. Industrial Comm\u2019n (1986), 144 Ill. App. 3d 1003, 1017.) Thus, claimant here must show that, but for his injury, he would have continued his professional football career as an offensive lineman with the Bears after 1983.\nRespondent argues that claimant cannot prove how long he could have continued playing professional football or how much he would have earned without engaging in speculation. Respondent contends that the competitive nature and physical demands of the sport dictated that claimant\u2019s employment as a Bear was of a temporary nature in that it was dependent on claimant\u2019s ability to excel over other players competing for his job. The record indicates that Ted Phillips, contract negotiator for the Bears, testified at the arbitration hearing that the player salary level depended mainly on performance level and where one ranks in relation to other players on the team. Jim Finks, general manager for the Bears during claimant\u2019s career, stated in an affidavit that claimant signed contracts year to year with the Bears and that such contracts were contingent on claimant\u2019s success in making the football team. Finks stated that not every player is guaranteed to make the team in any given year. He also averred that the average career length of a National Football League (NFL) offensive lineman is less than 10 years.\nIt is well settled that liability under the Act cannot be premised on speculation or conjecture but must be based solely on the facts contained in the record. (Fritz Electric Co., 165 Ill. App. 3d at 560.) However, we may not base our decision solely on the evidence submitted by the Bears organization since that would require impermissible speculation that claimant\u2019s career would not have extended beyond 1983 due to the nature of the sport when evidence in the record indicates otherwise. Claimant acknowledges that he, like many workers, was an at-will employee and thus was not guaranteed employment from year to year. However, the record shows that claimant, a first-round draft choice, started every game from his first season in 1977 up to the time of his injury. It is further acknowledged that there are offensive linemen in the NFL, and specifically with the Bears, who have been successfully playing professional football for more than the 10-year average averred by Jim Finks.\nIn Old Ben Coal Co., the appellate court held that section 8(d)(1) provides that \"a wage differential should be calculated on the presumption that but for the injury, the employee would be in the full performance of his duties.\u201d (Old Ben Coal Co., 198 Ill. App. 3d at 493.) We believe that the evidence here created a presumption that, but for claimant\u2019s injury, he would have been in the full performance of his duties as a Bears offensive lineman after 1983. Section 8(d)(1) provides that the employee shall receive compensation for the duration of his disability equal to 66% of the difference \"between the average amount which he would be able to earn in the full performance of his duties in the occupation in which he was engaged at the time of the accident and the average amount which he is earning or is able to earn in some suitable employment or business after the accident.\u201d (820 ILCS 305/8(d)(1) (West 1992).) We conclude that claimant entered suitable employment or business necessary for a wage-loss differential award when he began his travel business in 1983. Accordingly, claimant\u2019s benefits should have been calculated on this basis.\nWe reject the trial court\u2019s finding that the position of professional football player is \"beyond the realm of the skilled worker contemplated\u201d by those cases that have awarded a wage-loss differential under section 8(d)(1) of the Act. The trial court distinguished claimant\u2019s \"temporary\u201d career from that of the skilled worker in Old Ben Coal Co. (198 Ill. App. 3d at 493) where the wage-loss award was applied to the practice of a trade that spanned the lifetime of the claimant. The trial court in the instant case noted that there was never a possibility here of claimant\u2019s employment extending to his retirement from the work force. However, the text of section 8(d)(1) does not speak to situations of shortened work expectancy and there is no indication that this paragraph was intended to exclude employees in these circumstances. Indeed, it is more common in the work force today for an employee to change job positions several times over his career, whereas the practice of a trade spanning the lifetime of an employee is less common. We conclude that professional football players are skilled workers contemplated under the statute and that any shortened work expectancy in claimant\u2019s career would not preclude him from a wage-loss differential award under section 8(d)(1) beginning in 1983 when he started his travel business.\nRespondent also argues that claimant failed to prove that his injury resulted in impairment of his earning capacity, the second requirement for an award under section 8(d)(1) of the Act. The object is to compensate the injured employee for his reduced earning capacity, but if the injury does not reduce his earning capacity, he is not entitled to such compensation. (Franklin County Coal Corp. v. Industrial Comm\u2019n (1947), 398 Ill. 528, 532.) \"The test is the capacity to earn, not necessarily the amount earned.\u201d Franklin County Coal Corp., 398 Ill. at 532; see also 1C A. Larson, Workmen\u2019s Compensation \u00a7 57 \u2014 15, at 10 \u2014 111 (1993) (\"[I]t is earning impairment that should be crucial; actual wage-loss is significant as the best evidence of loss of earning capacity, but obviously some adjustments based on what the worker is 'able to earn\u2019 must be made *** to avoid conspicuous injustice\u201d).\nAs stated previously, section 8(d)(1) provides that awards thereunder are to be based on the difference between the \"average amount\u201d the employee would be able to earn in the full performance of his duties in the occupation in which he was engaged at the time of injury and the \"average amount\u201d he is earning or is able to earn in some suitable employment after his injury. (820 ILCS 305/8(d)(l) (West 1992).) In finding that claimant failed to prove an impairment in his earning capacity, the trial court noted that claimant\u2019s line of employment would have been over before the time of the arbitrator\u2019s hearing and his earning capacity as a football player would have ended; thus, compensation for loss of earnings would be \"fatuous\u201d given that he would have to engage in another occupation regardless of injury. The trial court also noted the arbitrator\u2019s finding that claimant\u2019s earnings showed a steady rise after 1983 and would in all probability continue to show an increase.\nThe evidence indicates that claimant\u2019s earnings were approximately $80,000 in 1983, $80,000 in 1984, $87,000 in 1985, and $36,000 in 1986. These amounts are considerably less than claimant\u2019s salary of $130,000 for his final season with the Bears in 1982. The evidence clearly shows an impairment in claimant\u2019s earning capacity after his injury in 1982. Claimant\u2019s earnings in the years after his injury did not even come close to his final 1982 salary with the Bears. We note that the evidence indicates that the salaries of claimant\u2019s fellow linemen increased dramatically after 1983, although we will not speculate as to what amount claimant would have earned in the years after 1983. We conclude that claimant has shown an impairment in his earning capacity and is eligible for wage-loss benefits under section 8(d)(1). The calculation of claimant\u2019s wage-loss differential award is to be determined from 1983 when he began his business and not the date of the 1988 hearing. Claimant\u2019s award is to be based on the difference between his 1982 salary of $130,000 and the amounts he actually earned in the years after his injury in 1982.\nAccordingly, we reverse the Commission and remand this cause in order for the Commission to enter an award pursuant to section 8(d)(1) of the Act consistent with the evidence herein.\nReversed and remanded with directions.\nRAKOWSKI, McCUSKEY, and RARICK, JJ\u201e concur.", "type": "majority", "author": "JUSTICE COLWELL" }, { "text": "PRESIDING JUSTICE McCULLOUGH,\ndissenting:\nAn award under section 8(d)(2) is appropriate when a claimant\u2019s injury partially incapacitates him from pursuing the duties of his usual and customary line of employment but does not result in an impairment of earning capacity.\nThe Commission\u2019s decision granting the section 8(d)(2) award was appropriate and was not against the manifest weight of the evidence.", "type": "dissent", "author": "PRESIDING JUSTICE McCULLOUGH," } ], "attorneys": [ "Wiedner & McAuliffe, Ltd., of Chicago, for appellant.", "Goggin, Cutler & Hull, of Chicago, for appellee." ], "corrections": "", "head_matter": "TED ALBRECHT, Appellant, v. THE INDUSTRIAL COMMISSION et al. (Chicago Bears Football Club, Appellee).\nFirst District (Industrial Commission Division)\nNo. 1\u201494\u20141622WC\nOpinion filed March 17, 1995.\nRehearing denied April 28,1995.\nWiedner & McAuliffe, Ltd., of Chicago, for appellant.\nGoggin, Cutler & Hull, of Chicago, for appellee." }, "file_name": "0756-01", "first_page_order": 776, "last_page_order": 782 }