dissenting:
I agree with the majority that claimant is entitled to only one form of compensation, that is, either a wage-differential award or a percentage-of-the-person-as-a-whole award. However, claimant does not contend that he is entitled to both types of award. Instead, claimant contends that compensation for loss of earning capacity must be included in the percentage award, and a plain reading of the statute supports this position. I would affirm the Commission’s corrected decision.
Section 8(d)(2) provides that if claimant’s disease partially incapacitates him from pursuing the duties of his employment and such disease results in the impairment of earning capacity, and if claimant "elects” to waive his right to recover under the wage differential provision, he is entitled to receive a percentage award. 820 ILCS 305/8(d)(2) (West 1994). As the majority notes, section 8(d)(2) provides for a person-as-a-whole award under several different scenarios, including where claimant suffers injuries which partially incapacitate him from his or her normal job function and result in an impairment of earnings and he or she elects to receive an award under paragraph 2 rather than paragraph 1. 820 ILCS 305/8(d)(2) (West 1994). The language of the statute clearly and unequivocally contemplates a claimant receiving a person-as-a-whole award which compensates him for both functional incapacity and impairment of earnings if both elements are present. Accordingly, if claimant proves both functional impairment and loss of earning capacity, he is entitled to compensation for such loss in a single percentage award.
The statute clearly defines disability as either a functional impairment "or the event of becoming disabled from earning full wages at the work in which the employee was [last] engaged.” 820 ILCS 310/1(e) (West 1994). An award of compensation is not for the disability as such, but for the impaired earning capacity which results from that disability. E.R. Moore Co. v. Industrial Comm’n, 71 Ill. 2d 353, 360, 376 N.E.2d 206, 209 (1978). Claimant must prove the nature and extent of his disablement, including the loss of earning capacity. In assessing the extent of disablement, the Commission must consider claimant’s age, experience, training, and capabilities. See E.R. Moore, 71 Ill. 2d at 362, 376 N.E.2d at 210.
Here, claimant presented medical evidence that he could not return to coal mining because it would only exacerbate his pneumoconiosis. Claimant had spent 27 years in mining, had an eleventh-grade education, and was 61 years old at the time of arbitration. Although claimant had spent 17 years as a laborer, that employment ended 20 years ago when claimant began working for respondent. The medical evidence, plus claimant’s advanced age, limited education, and lack of experience outside the mining industry, indicates not only a loss of earning capacity as a coal miner but also an inability to perform services except those for which only a limited job market exists. Accordingly, claimant presented a case for both functional impairment and loss of earning capacity. Although the majority contends that there is nothing in the recoid indicating that the arbitrator did not consider claimant’s loss of earning capacity, I believe that the language employed by the arbitrator unequivocally demonstrates that he did not:
"It is the finding of the Arbitrator that on the basis of his functional impairment as measured by the testimony of Petitioner and the testing of record, that [sic] Petitioner is permanently partially disabled to the man-as-a-whole to the extent of 15%.” (Emphasis added.)
The Commission affirmed and adopted the arbitrator’s decision. The circuit court properly remanded the cause based on the Commission’s failure to consider claimant’s loss of earning capacity when determining the percentage of the person-as-a-whole award. 820 ILCS 310/19(f)(2) (West 1994). On remand, the Commission increased the award to 20% of the person as a whole, and that increase was based upon medical evidence that plaintiff could no longer work in the mining industry although other gainful employment was not precluded. The Commission properly followed the dictates of the remand order and entered an increased award which is not against the manifest weight of the evidence. I would affirm the Commission’s corrected decision and opinion.