NO. 3-01-0166WC

IN THE

APPELLATE COURT OF ILLINOIS

THIRD DISTRICT

Industrial Commission Division

JUSTICE RARICK delivered the opinion of the court:

Claimant, Gary Keil, sought benefits pursuant to the Workers' CompensationAct (Act) (820 ILCS 305/1 et seq. (West 1996)) for injuries sustained while in the employof United Parcel Service (UPS). Keil was employed as a feeder driver. His duties includedassembling and disassembling tandem trailers. On November 26, 1997, Keil was pullingthe fifth wheel release when the arm broke, causing Keil to fall down on his right knee. Hewas examined by Dr. Cassell, who diagnosed an aggravation of an underlying severedegenerative osteoarthritis of the patellofemoral joint of the right knee. Keil subsequentlyunderwent a total knee replacement. The arbitrator awarded Keil 65 weeks of temporarytotal disability (TTD) benefits, finding that he was temporarily totally disabled from November 26, 1997, through July 12, 1998. The arbitrator further found Keil had sustaineda 50% loss of use of the right leg, and awarded permanent partial disability benefits pursuantto section 8(e) of the Act. At arbitration, Keil had testified that he had filed a prior workers'compensation claim for a right knee injury in Iowa in 1995. This injury also occurred whilein the employ of UPS, the same employer in the present case. Pursuant to a settlementagreement, he was awarded a 17-1/2 percent loss of use the right leg in that case andreceived $21,000. The arbitrator declined to give UPS a credit for the out-of-state award,finding that credit for prior losses under section 8(e) is limited to those permanent partiallosses as defined under the Illinois Act. The arbitrator reasoned that giving credit forpermanent partial losses as defined under the workers' compensation statutes of other stateswould require the Commission to interpret and apply the laws of other states in determiningan appropriate section 8(e) credit.. The Industrial Commission (Commission) reversed thedecision of the arbitrator and applied a credit to the award, finding that the plain languageof section 8(e)(17) does not preclude credit for an out-of-state award. The decision of theCommission was confirmed by the circuit court of Peoria County.

On appeal, Keil argues that the Commission's decision granting UPS a creditfor the Iowa award is contrary to the law and against the manifest weight of the evidence. He maintains that in drafting section 8, our legislature specifically defined what constitutes"compensation" and how "permanent partial loss" is defined, and that paragraph (e) containsa specific schedule to determine the "permanent partial loss of use" of a specific body part. He contends that we cannot assume that the 17-1/2% "partial loss" in the Iowa award wasdetermined, rated and ascertained under the same definitions of "partial loss" under the Act. Section 8(e)(17) provides:

In computing the compensation to be paid to anyemployee who, before the accident for which he claimscompensation, had before that time sustained an injury resultingin the loss by amputation or partial loss by amputation of anymember, including hand, arm, thumb or fingers, leg, foot or anytoes, such loss or partial loss of any such member shall bededucted from any award made for the subsequent injury. Forthe permanent loss of use or the permanent partial loss of use ofany such member or the partial loss of sight of an eye, for whichcompensation has been paid, then such loss shall be taken intoconsideration and deducted from any award for the subsequentinjury. 820 ILCS 305(8)(e)(17) (West 1996).

In General Motors Corporation, Fisher Body Division v. Industrial Comm'n,62 Ill. 2d 106, 338 N.E.2d 561 (1975), our supreme court construed the language of section8(e)(17) with respect to the granting of credit. Specifically, our supreme court addressed theissue of whether an employer should receive credit for a settlement of a prior injury. Theclaimant argued that a settlement was not an "award" under section 8(e) and therefore creditshould not be given. The employer argued that it was entitled to a credit for a loss of use forwhich compensation had been paid, not upon the entry of an "award" by the Commission. In agreeing with the employer, our supreme court stated:

The cardinal rule of all statutory construction, to whichother rules are subordinate, is that the true intent and meaningof the legislature must be ascertained and given effect.[Citation.] The language used in a statute is the primary sourcefor determining this intent, and where that language is certainand unambiguous, the proper function of the courts is to enforcethe statute as enacted. [Citation.] Absent statutory definitionsindicating a different legislative intention, courts will assumethat words have their ordinary and popularly understoodmeaning. [Citation.] The clear and obvious meaning of thepertinent provisions of section 8(e) is that the permanent loss orpermanent partial loss of use 'for which compensation has beenpaid' shall be credited in any award for a subsequent injury tothe same member. The statute is devoid of any condition orlimitation that an award must have been entered for the priorinjury. The statute's only requirement is that compensation hasbeen paid for the prior injury. [Citation.] General Motors, 62Ill. 2d at ____, 338 N.E.2d at 564. (emphasis added)

Although General Motors did not involve credit for an out-of-state award, wenevertheless find it dispositive. The clear and unambiguous language of Section 8(e)(17)is devoid of any condition or limitation that compensation paid for the prior injury was paidpursuant to a claim under the Illinois Act. As our supreme court noted in General Motors,the statute's only requirement is that compensation has been paid for the prior injury.

Keil argues that the terms "compensation and "permanent partial loss" as usedin section 8(e)(17) must be afforded the meaning ascribed to them in other portions of theAct and that the prior permanent partial loss for which credit can be sought under paragraph17 must be defined and ascribed under the rules, definitions and criteria contained in theAct. Doing otherwise, Keil maintains, would require the Commission to interpret and applydefinitions and laws of other states. We do not agree.

We believe that the language employed in the statute - "such loss shall be takeninto consideration and deducted from any award for the subsequent injury" - was used byour legislature in contemplation that different states might ascertain and compensate injuriesdifferently. The statute does not restrict the Commission as to how it should determine theproper amount of credit. Instead, it requires only that the Commission take the prior lossinto consideration and deduct it from any subsequent award. This gives the Commission thenecessary flexibility to address each situation on a case-by-case basis in order to achieve theremedial purpose of the statute while achieving a result that is just and equitable.

In summary, the Commission may grant credit for out-of-state awards pursuantto section 8(e)(17), and the manner in which the amount of credit is determined is a factualmatter for the Commission.

For the foregoing reasons, the judgment of the circuit court of Peoria Countyis affirmed.

Affirmed.

McCULLOUGH, P.J., HOFFMAN, O'MALLEY, and HOLDRIDGE, JJ.,concur.