Is it Double Recovery? Addressing Compensation Beyond Statutory-Mandated Payments

March 2026

Jeffrey R. Gibellina

A question that often arises in our practice is whether an injured worker is entitled to additional compensation for permanency – whether that be for loss of body part or loss of person as a whole – and/or indemnity benefits after an accident resulting in injuries that obligate respondent under Section 8(e)18 (or for amputations under 8(e)) to issue permanent total disability (PTD) benefits for life.

Section 8(e)18 of the Illinois Workers’ Compensation Act states, in relevant part:

The specific case of loss of both hands, both arms, or both feet, or both legs, or both eyes, or of any two thereof, or the permanent and complete loss of the use thereof, constitutes total and permanent disability, to be compensated according to the compensation fixed by paragraph (f) of this Section. These specific cases of total and permanent disability do not exclude other cases.

The common refrain, and understandably so, is that any compensation awarded above and beyond lifetime benefits is “double dipping.” After all, if an injured worker is entitled to lifetime benefits under Section 8(e)18 at the highest weekly rate (equal to recovery under Section 8(f) for permanent total disability or 66-2/3% of average weekly wage rate), why would they be entitled to compensation above and beyond the same? Though the Illinois Workers’ Compensation Act is somewhat instructive on this issue, case law gives us a more rounded understanding of this conundrum and how to approach these fact patterns in our claims.

There is a line of case law that addresses whether an injured worker can recover under both Section 8(e)18 as well as other sections, mainly, under Section 8(b) for temporary total disability, under Section 8(e)(1-17) – i.e. loss of use of arm, leg, etc. – or loss of scheduled body parts, and under loss of person as a whole under Section 8(d)2.

In Freeman United Coal Mining Co. v. Illinois Workers’ Compensation Comm’n, 2013 IL App (5th) 120564WC, the injured worker, while working as a miner, sustained an accident resulting in amputation of both legs below the knee. The parties agreed that petitioner was entitled to lifetime benefits under Section 8(e)18. The petitioner continued to work at his employer after the accident when he sustained another injury involving the end of the left residual limb. The injured worker sought TTD benefits for the second accident, which the employer denied citing to the fact that they were already paying out max benefits for the remainder of petitioner’s life for the first accident. The court awarded TTD benefits. In arriving at its finding, the court conducted an analysis of the language within Section 8(e)18, finding that the “permanent and total ” language within that section is “only by legislative pronouncement; it is not inconsistent with a continuing ability to work.” The court added, citing other cases as well, that the section “is not merely to replace lost wages or provide financial protection for workers whose earning power is terminated, but is brough enough to accommodate the pain and inconvenience that accompany the specific case of loss of both hands, both arms, both feet, both eyes…even though the employee remains able to work.” This language is a little concerning as it appears to be a workaround by the court to compensate for pain and suffering as there is no statutory recovery for the same under the Act.

The Beelman Trucking v. Illinois Workers’ Compensation Comm’n, 233 Ill. 2d 364 (2009) case allows injured workers to recover under both Section 8(e)18 and for loss of a specific body part under Section 8(e)(1-17). In this case, the injured worker, while employed as a truck driver for the employer, was involved in a serious vehicular accident resulting in paralysis of both legs, paralysis below the shoulder in his left arm, and surgical amputation of his right arm above the elbow. The accident and the nature and extent of the injuries were not in dispute. The court citing to Section 8(e)(18) of the Act awarded, in part, statutory PTD benefits for life for 100% loss of use of both legs. The court also awarded 235 weeks for permanent partial disability (PPD) under Section 8(e)(10) or 92.88% loss of use of the left arm and 250 weeks for PPD under Section 8(e)(10) or 98.81% loss of use of the right arm. The case was appealed all the way up the Supreme Court of Illinois. There, the court, referencing the Freeman United Coal Mining decision, stated “it was permissible to penetrate the fiction of 100 per cent disability and accept the truth of [the worker’s] remaining earning ability so that a subsequent injury with increased actual disability may be compensated.” The court further found that it is “equally permissible to penetrate that fiction when other cases of loss in the same accident result in ‘increased actual disability.’”

The American Coal v. Illinois Workers’ Compensation Commission, 2024 IL App (5th) 230815WC case is the most recent decision addressing additional compensation above and beyond that allowed under Section 8(e)18. The court extended the previous decisions to allow for recovery under both Section 8(e)18 and Section 8(d)2, or more commonly known as loss of person as a whole, for non-scheduled injuries. In this case, the injured worker sustained a serious stomach injury involving forceful compression while working as an underground coal miner. The mechanism of injury resulted in blindness in both eyes due to damage to the optic nerves (triggering recovery under Section 8(e)18) as well as physical injuries to his spine, hip, abdomen, and head (psych). At the Commission, the presiding arbitrator awarded the following non-scheduled losses: (1) PTD benefits of $1,008.40 per week for life pursuant to Section 8(e)(18) for the Illinois Workers’ Compensation Act for 100% loss of use of both the right and left eye, (2) 21 weeks or 4.2% loss of person as a whole for five lumbar transverse fractures, and (3) 300 weeks or 60% loss of person as a whole for injuries to the spine, hip, abdomen, and head (psych). At trial, the respondent argued that the petitioner cannot recover on both Section 8(e)(18) for permanent total disability benefits and also recover under non-scheduled losses under 8(d)2). The court reasoned that only allowing for recovery under Section 8(e)(18) “would leave claimant uncompensated for additional losses [beyond loss of vision] that could further impact his earning capacity.” The court added that this award did not result in double recovery, citing the Beelman Trucking decision that “statutory permanent total disability falls far short of addressing the full scope of [claimant’s] injuries from this accident.”

Generally, the courts go to great lengths to differentiate Section 8(e)(18) and Section 8(f), which covers permanent total disability after a showing that injured worker is not employable in a stable labor market. Section 8(f) states, in part:

In case of complete disability, which renders the employee wholly and permanently incapable of work, or in the specific case of total and permanent disability as provided in subparagraph 18 of paragraph (e) of this Section, compensation shall be payable at the rate provided in subparagraph 2 of paragraph (b) of this Section for life.

The courts give particular significance to the language “wholly and permanently incapable of work,” within Section 8(f), as Section 8(e)18 contains no reference to inability to work despite the “total and permanent” language in that section.

Thus, we can infer there is a presumption by the courts that even if injured workers recover benefits under Section 8(e)18, they are still capable of working, unless shown otherwise, and therefore they remain eligible for future workers’ compensation benefits, whether stemming from their initial claim or a future claim(s).

What does this mean for employers? Interestingly, with certain fact patterns, we may have an incentive to argue for an award under Section 8(f) or permanent total disability. Yes, we may in fact want to prove up that the injured worker cannot return to the workforce due to the accident as the lifetime benefits are equal to those under Section 8(e)18. By doing so, we protect against potential added exposures for (1) loss of scheduled body parts, (2) loss of person as a whole, and (3) indemnity/TTD benefits under Section 8(b) (as awarded in the cited cases above).

We will also monitor whether future cases allow for additional compensation under (1) Section 8(d)1 or wage differential or (2) Section 8(f) or permanent total disability for future accidents. In other words, would the court go so far as to award wage differential or permanent total disability – after benefits start under Section 8(e)(18) – due to a subsequent injury at work that further impairs earning capacity or removes petitioner from workforce, respectively? We would argue that these scenarios cross that threshold into impermissible double recovery, especially for permanent total disability (benefits would be the same).

An injury that triggers immediate statutory payment, whether that be under Section 8(e)18 or, by extension, amputations, our exposures do not end there. The Courts, time and again, will invoke the “remedial” nature of the Illinois Workers’ Compensation Act in determining whether the injured worker is entitled to additional compensation for permanency and indemnity.

If you need assistance with defending against these or any other claims, please contact BCM Law, P.C.