concurring in part and dissenting in part:
I concur in the majority opinion in all aspects, save one. I would affirm the decision to award a specific loss under section 8(e)(10) in conjunction with a statutory permanent total disability award under section 8(e)(18) because I find that it is supported by the facts and the law.
Section 8(e)(18) provides that the loss of both hands, both arms, both feet, both legs, both eyes, or any two thereof, or the permanent and complete loss of use thereof, constitutes total and permanent disability. 820 ILCS 305/8(e)(18) (West 2004). Disability under section 8(e)(18) is construed to be permanent and total disability by legislative pronouncement. Freeman United Coal Mining Co. v. Industrial Comm’n, 99 Ill. 2d 487, 492-93, 459 N.E.2d 1368, 1371 (1984); Scandroli Construction Co. v. Industrial Comm’n, 54 Ill. 2d 395, 399, 297 N.E.2d 150, 153 (1973). A section 8(e)(18) award does not consider a measure of the claimant’s employability and does not require that an employee be wholly and permanently incapable of work. Scandroli Construction Co., 54 Ill. 2d at 399, 297 N.E.2d at 153; Freeman United Coal Mining Co., 99 Ill. 2d at 493-95, 459 N.E.2d at 1371-73. The intent of section 8(e)(18) is not simply to replace lost earnings; it is “ ‘broad enough to accommodate the pain and inconvenience!], rather than actual disability,] that accompany [the loss of two members] even though the employee remains able to work.’ ” Freeman United Coal Mining Co., 99 Ill. 2d at 492-93, 459 N.E.2d at 1371, quoting National Lock Co. v. Industrial Comm’n, 62 Ill. 2d 51, 56-57, 338 N.E.2d 405, 408 (1975).
In Freeman United Coal Mining Co., the Illinois Supreme Court upheld an award of temporary total disability benefits to an employee who returned to work after having been awarded section 8(e)(18) benefits for a bilateral amputation of both legs and who subsequently sustained another work-related injury. The supreme court stated that the subsequent injury destroyed the claimant’s earning power and income stream and should not be “ ‘suffered without recompense.’ ” Freeman United Coal Mining Co., 99 Ill. 2d at 494, 459 N.E.2d at 1372, quoting Jones v. Cutler Oil Co., 356 Mich. 487, 502, 97 N.W.2d 74, 81 (1959). The question in Freeman United Coal Mining Co. involved the award of TTD benefits. The supreme court noted that it had not been called upon to decide whether the claimant would be entitled to any permanency benefits and that the issue would be saved for another day. Freeman United Coal Mining Co., 99 Ill. 2d at 495, 459 N.E.2d at 1372.
Nevertheless, the Illinois Supreme Court has affirmed the Commission’s decision to award concurrent permanency benefits in cases where the claimant suffered distinct injuries in a single accident. See, e.g., C.S.T. Erection Co. v. Industrial Comm’n, 61 Ill. 2d 251, 335 N.E.2d 419 (1975); R.C. Mahon Co. v. Industrial Comm’n, 45 Ill. 2d 480, 259 N.E.2d 274 (1970); J.J. Grady Co. v. Industrial Comm’n, 46 Ill. 2d 471, 263 N.E.2d 809 (1970).
In the case at bar, the claimant sustained numerous injuries in a single accident. It is beyond debate that the injury to the cervical spinal and the degloving injury to the right arm are concurrent and distinct injuries. The degloving injury to the right arm required multiple surgeries, including an above-elbow amputation. It resulted in a specific loss of the type contemplated under section 8(e)(10). The C5-6 burst fracture resulted in the complete loss of use of the claimant’s legs and the near-complete paralysis of his left arm. A statutory permanent total disability award under section 8(e)(18) of the Act is appropriate because there is no evidence that the disability resulting from the C5-6 burst fracture would have left the claimant wholly incapable of work. The degloving injury to the right arm resulted in an additional impairment to the claimant’s earning power and warrants additional compensation. This is not a case where concurrent awards would represent a double recovery for the same injury. This is not a case where the maxim “a workman can only be 100% disabled” applies. There is no evidence that either injury, by itself, would have left the claimant without a market for his skills, and thus completely unemployable. To declare, as the majority has, that a statutoiy permanent and total disability award under section 8(e)(10) precludes an additional permanency benefit where a distinct injury results in additional impairment of earning power is to create an exception to the employer’s liability that violates the letter and spirit of the Act.
After considering the reasoning of the supreme court in the above cases and the remedial purposes of the Act, I conclude that the decision to award a specific loss under section 8(e)(10) in conjunction with a statutory permanent total disability award under section 8(e)(18) is proper under the law and the facts.
I would also affirm the circuit court’s decision to confirm the Commission’s decision to increase the section 8(e)(10) award for the above-elbow amputation of the right arm from 250 weeks to 300 weeks. Section 8(e)(10) of the Act provides for an additional award where the accidental injury results in “the amputation of an arm at the shoulder joint, or so close to [the] shoulder joint that an artificial arm cannot be used.” 820 ILCS 305/8(e)(10) (West 2004). The medical evidence shows that the above-the-elbow amputation left the claimant without adequate anatomical structures and sufficient strength to support a prosthetic device. The Commission’s decision to award additional weeks of compensation under section 8(e)(10) is supported by the evidence and is not contrary to the law.
Accordingly, I would affirm the decision of the circuit court in all respects.