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TTD FACT SCENARIOS: INTERSTATE SCAFFOLDING CASE AND HOW TO SUSPEND TTD 

Presented and Prepared by: Kevin J. Luther

kluther@heylroyster.com Rockford, Illinois • 815.963.4454

Heyl, Royster, Voelker & Allen PEORIA • SPRINGFIELD • URBANA • ROCKFORD • EDWARDSVILLE

© 2010 Heyl, Royster, Voelker & Allen 15547628_4.DOCX

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TTD FACT SCENARIOS: INTERSTATE SCAFFOLDING CASE AND HOW TO SUSPEND TTD

I. GENERAL TTD PRINCIPLES ...................................................................................................................... G-4

A. Supreme Court Addresses Propriety of TTD Termination Where Employee Is Fired for Violating Company Rules ................................................ G-4

1. Factual Background ...................................................................................................... G-5 2. Procedural History ........................................................................................................ G-5 3. Supreme Court Analysis ............................................................................................. G-6 4. What Does Interstate Scaffolding Mean in Other TTD Termination Settings? ........................................................................... G-7

II. RECURRING TTD PATTERNS ................................................................................................................. G-11

A. Petitioner Was Off Work and Had Not Yet Returned to Work Prior to the Economic Layoff ..................................................................................... G-11

B. Petitioner Returned to Work with Restrictions (Perhaps Light Duty) and the Employer Accommodated the Restrictions at a Lower Wage Rate, and the Petitioner Is Laid Off ................................................................................................................. G-11

C. The Petitioner Returns to Work with Restrictions to His Former Job, Was Not at MMI, the Employer Accommodated the Restrictions with No Wage Loss, and the Petitioner Is Laid Off ................................................................................................. G-11

D. Petitioner Returned to Work with Restrictions, Was Not at MMI, and Was Able to Perform His Former Job Because the Restrictions Do Not Interfere with Job Performance ............................................ G-12

E. Petitioner Is at MMI without Restrictions, Returns to Former Employment, Then Laid Off .................................................................................................... G-12

F. Petitioner Is at MMI with Restrictions, Returns to Former Employment, but No Accommodation is Necessary, and Is Then Laid Off .................................................................................................................. G-12

G. Petitioner Is at MMI with Restrictions, Restrictions Interfere with Regular Job Duties, Employer Accommodated the Restrictions, and Then Petitioner Is Laid Off .................................................................... G-12

H. Petitioner Is at MMI with Restrictions, Is Laid Off, then Obtains Same Employment Elsewhere at a Lower Wage ............................................................ G-13

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I. Petitioner Is Not at MMI, Obtains Employment Elsewhere After Being Laid Off, Subsequent Employer Accommodates Restrictions at a Lower Wage ................................................................................................ G-13

J. Petitioner Is Not at MMI Because She Delays in Arranging Future Surgery/Treatment, Is Working Light Duty at the Same or Reduced Rate, and Is Then Laid Off .................................................................................................................. G-13

K. Petitioner Not at MMI, Offered Modified-Duty Work and Refuses, and Is Then Laid Off ................................................................................................ G-13

III. LIMITING TTD EXPOSURE DURING LAYOFFS ................................................................................. G-14 IV. ADDITIONAL TTD ISSUES ....................................................................................................................... G-14

A. TTD and Illegal Aliens .............................................................................................................. G-14 B. TTD and Failure to Attend IME .............................................................................................. G-15 C. TTD and Unemployment Compensation .......................................................................... G-15 D. TTD and Incarceration .............................................................................................................. G-16 E. TTD and Retirement .................................................................................................................. G-16 F. Occasional Wages and TTD Liability ................................................................................... G-17 G. TTD Liability and Social Security Benefits ......................................................................... G-17 H. TTD and Unsanitary or Injurious Practices ........................................................................ G-17

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TTD FACT SCENARIOS: INTERSTATE SCAFFOLDING CASE AND HOW TO SUSPEND TTD

I. GENERAL TTD PRINCIPLES

Temporary total disability benefits are awarded for the period of time from when an employee is injured until he/she has recovered as far as the character of the injury will permit. Mechanical Devices v. Industrial Comm'n, 344 Ill. App. 3d 752, 760, 800 N.E.2d 819, 279 Ill. Dec. 531 (4th Dist. 2003). A person is considered totally disabled when he or she cannot perform any services except those that are so limited in quantity, dependability, or quality that there is no reasonably stable market for them. Dolce v. Industrial Comm'n, 286 Ill. App. 3d 117, 122, 675 N.E.2d 175, 221 Ill. Dec. 268 (1st Dist. 1996). The dispositive test for determining TTD duration is whether the petitioner’s condition has stabilized, i.e., reached maximum medical improvement (MMI). Mechanical Devices v. Industrial Comm'n, 344 Ill. App. 3d 752, 759, 800 N.E.2d 819, 279 Ill. Dec. 531 (4th Dist. 2003). The factors to consider in deciding whether a petitioner’s condition has stabilized include: (1) a release to return to work; (2) the medical testimony about the petitioner’s injury; and (3) the extent of the injury; and (4) whether the injury has stabilized. Land and Lakes Co. v. Industrial Comm'n, 359 Ill. App. 3d 582, 594, 834 N.E.2d 583, 296 Ill. Dec. 26 (2d Dist. 2005). This test sets the outer boundary for TTD benefits and a demarcation between entitlement to TTD benefits and permanency. A person may not have reached MMI but is nevertheless no longer receiving TTD benefits because he is back to work and performing his former job, even with restrictions. A petitioner seeking TTD benefits must prove not only that he did not work but also that he was unable to work. Anders v. Industrial Comm'n, 332 Ill. App. 3d 501, 507, 773 N.E.2d 746, 266 Ill. Dec. 11 (4th Dist. 2002). However, “unable to work” does not mean that the petitioner is obligated to look for other work. In Lukasik v. Industrial Comm'n, 124 Ill. App. 3d 609, 615, 465 N.E.2d 528, 80 Ill. Dec. 416 (1st Dist. 1984), the court did note that the period of temporary total disability may terminate before the petitioner has recovered to the full extent. In Lukasik, while the record reflected that the petitioner may not have fully recovered as of the date TTD was terminated, the Appellate Court found that the Commission could properly have determined that he was no longer totally disabled and unable to work. The court found no basis from the evidence to justify petitioner’s failure to seek any employment following his release for light work, and the court therefore denied TTD benefits at that point.

A. Supreme Court Addresses Propriety of TTD Termination Where Employee Is Fired for Violating Company Rules

On January 22, 2010, the Illinois Supreme Court issued its much-awaited decision in Interstate Scaffolding, Inc. v. Illinois Workers’ Compensation Comm’n, 236 Ill. 2d 132, 923 N.E.2d 266, 337 Ill.

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Dec. 707 (2010). The issue before the court was whether an employer’s obligation to pay temporary total disability (TTD) workers’ compensation benefits to an employee ceases when the employee is terminated for conduct unrelated to the injury. The Supreme Court broadly held that an employer’s obligation to pay TTD benefits continues until the employee’s medical condition has stabilized or until the petitioner is capable of reentering the work force. This month’s issue of Below the Red Line focuses on the Interstate Scaffolding decision and the effect it may have on how employers handle other TTD issues.

1. Factual Background

The petitioner, Jeff Urban, an employee of Interstate Scaffolding, injured his head, neck, and back in an accident while in the course and scope of his employment. His physician released him for light duty, and he continued to work for Interstate Scaffolding in that capacity. After writing some religious “graffiti” on a wall in a storage room on the employer’s premises, he was fired for defacement of property. Following his termination, the employer ceased paying his TTD benefits.

2. Procedural History

Arbitrator Hennessy heard the case and determined that the petitioner’s TTD benefits ended on the date of his termination for cause. According to the arbitrator’s decision, “[n]otwithstanding the divisive, conflicting testimony regarding the arguments and confrontations of May 25, 2005, at the [employer’s] place of business and the unusual basis for the termination of the Petitioner, this Arbitrator finds the Petitioner is not entitled to temporary total disability benefits subsequent to his termination of May 25, 2005.” Interstate Scaffolding, 236 Ill. 2d at 139. Arbitrator Hennessy did not provide any explanation for the termination of the TTD benefits after the petitioner’s termination. On review, the Illinois Workers’ Compensation Commission overturned Arbitrator Hennessey’s ruling and held that the petitioner was entitled to TTD benefits beyond the date of his termination “based on the fact that [the claimant’s] condition had not stabilized as of the June 29, 2005, Arbitrator’s hearing.” Id. at 143. The Commission did not make any findings with regard to Urban’s termination. The circuit court confirmed the Commission’s decision, and the matter proceeded to the Appellate Court, Workers’ Compensation Division, which in a 3-2 decision reversed the Commission’s decision on the issue of TTD. The court concluded that although the petitioner’s condition had not stabilized and even the employer’s IME had opined a need for cervical surgery, he was not entitled to TTD benefits because he was terminated “for cause” on May 25, 2005. In reaching this decision, The Appellate Court majority reviewed several factually similar Illinois decisions and concluded that “the critical inquiry in determining whether the employee is entitled to TTD benefits after leaving the work force centers on whether the departure was voluntary.” Id. The majority believed that the petitioner, by violating work rules and defacing company property, had voluntarily withdrawn himself from the work force and therefore was not

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entitled to continued TTD benefits. According to the Appellate Court, “[t]he overriding purpose of the Illinois workers’ compensation scheme is to compensate an employee for lost earnings resulting from a work-related disability.” Interstate Scaffolding, Inc. v. Workers’ Compensation Comm’n, 385 Ill. App. 3d 1040, 1047, 896 N.E.2d 1132, 324 Ill. Dec. 913 (3d Dist. 2008). Removing one’s self from the work force by violating company rules is not the same as losing earnings from a work-related disability. Two of the five justices dissented. Although agreeing with the majority in principle – that TTD may be terminated when an employee is fired for violating company rules – the two dissenting justices advocated that if the employee can establish that the medical restrictions resulting from the work-related injury prevents him from securing employment at pre-injury work levels, TTD benefits should be payable for the loss of earning capacity. Following the decision and on motion of the petitioner, two of the justices made the appropriate finding under Supreme Court Rule 315(a) that the case involved significant issues warranting Supreme Court review.

3. Supreme Court Analysis

The Supreme Court accepted the employee’s petition for leave to appeal and after extensive briefing (including an amicus brief on behalf of the Association of Illinois Defense Counsel authored by Heyl Royster), the Supreme Court held that as a matter of law an employer’s obligation to pay TTD benefits to an injured employee does not cease because the employee has been discharged, even for cause. When an injured employee has been discharged by his employer, the determinative inquiry for deciding entitlement to TTD benefits remains whether the petitioner’s condition has stabilized. In reaching this conclusion, the Supreme Court cited section 8(b) of the Act, which states: “weekly compensation . . . shall be paid . . . as long as the total temporary incapacity lasts.” Interstate Scaffolding, Inc. v. Illinois Workers’ Compensation Comm’n, 236 Ill. 2d 132, 142, 923 N.E.2d 266, 337 Ill. Dec. 707 (2010). The court then noted that the Commission’s determination of how long the petitioner was temporarily totally incapacitated was a question of fact that could only be disturbed if it was against the manifest weight of the evidence. The Supreme Court took issue with the fact that while the Appellate Court admitted there was sufficient evidence that the petitioner had yet to reach MMI, it nonetheless failed to uphold the Commission’s decision.

Practice Pointer #1: If you have a situation where the petitioner has been terminated for a voluntary act of misconduct while working with restrictions, consider whether an IME could be conducted to find the petitioner has reached MMI.

Looking to the language of the Act, the court noted that there was no statutory language providing that TTD benefits can be terminated, suspended, or denied when an employee is

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discharged for “volitional conduct.” Since the Act failed to specifically grant the Commission the power to evaluate whether the discharge was the result of an employment decision, the Commission lacked the power to make such a determination. Thus, the court held that the Commission’s only focus in such cases must be whether the petitioner is at MMI or ready to re-enter the work force.

Practice Pointer #2: If the petitioner is not at MMI but is capable of working, consider performing a formal or informal job search to identify other jobs available to the petitioner within the restrictions. If it can be shown that the petitioner was capable of re-entering the work force, even if he is not at MMI, he would not be entitled to TTD benefits.

According to the court, the Commission’s exclusive focus in determining whether an employee is entitled to TTD is whether the petitioner’s condition has stabilized (reached MMI) or whether the employee is able to show that he continues to be temporarily totally disabled as a result of his work-related injury. Therefore, whenever a petitioner has not yet reached MMI and he remains temporarily totally disabled as a result of his work-related injury, Interstate Scaffolding says he will be entitled to TTD benefits, regardless of whether he has been terminated for violating company rules or not.

4. What Does Interstate Scaffolding Mean in Other TTD Termination Settings?

The Supreme Court’s ruling makes it clear that the Act provides TTD benefits to an employee so long as he is not at MMI or is temporarily totally disabled as a result of his work injury. Although this has been the relevant standard for many years, the court’s strict interpretation of the Act likely means that judicial exceptions will not be allowed and that absent a guiding provision of the Act, the sole determinative issue is whether the employee has reached MMI. While it is very possible that the decision may cause the Commission to be reluctant to terminate a petitioner’s TTD benefits prior to MMI, there are still valid arguments for terminating TTD in various situations that have not been specifically overruled by Interstate Scaffolding. Interstate Scaffolding does not say that a petitioner is entitled to be paid TTD benefits ad infinitum. Terminating TTD remains one of the most effective ways of bringing a case to rapid conclusion, and thus grounds for terminating TTD should be carefully evaluated.

a) Terminating TTD When Providing Employment within Restrictions

Employers frequently terminate TTD benefits pre-MMI by providing employees with temporary employment within the physician’s restrictions while they continue to receive treatment and heal. Such practices should not be affected because the thrust of Interstate Scaffolding centers on how an employer can terminate TTD benefits when an employee has not reached MMI and has not received a full release to return to work.

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b) Terminating TTD When the Employee Refuses to Work Within the Restrictions

Illinois law is well-settled that TTD benefits can be cut off if the employee refuses work falling within the physical restrictions prescribed by his doctor. See, 820 ILCS 305/8(d); Hartlein v. Illinois Power Co., 151 Ill. 2d 142, 166, 601 N.E.2d 720, 176 Ill. Dec. 22 (1992). Under this section of the Act, employees who refuse to comply with an employer’s offer of light-duty work within the physician’s restrictions should not be entitled to TTD. Gallentine v. Industrial Comm'n, 201 Ill. App. 3d 880, 559 N.E.2d 526, 147 Ill. Dec. 353 (2d Dist. 1990). However, with the advent of temporary partial disability, which entitles the employee to a temporary wage differential, current law suggests that the employer may still be obligated to cover the partial TTD until the petitioner reaches MMI.

c) Terminating TTD Based on Employee Layoffs

Another scenario, although not specifically addressed by the court in Interstate, is whether an employee is entitled to TTD benefits when the employee is laid off for reasons unrelated to the injury by the employer prior to reaching MMI. There are cases that have held that the employee is entitled to TTD benefits unless the employer could obtain employment for the employee within the restrictions elsewhere. See, Whitney Productions, Inc. v. Industrial Comm’n, 274 Ill. App. 3d 28, 653 N.E.2d 965, 210 Ill. Dec. 770 (2d Dist. 1995). However, a recent decision by the Illinois Workers' Compensation Commission reached a contrary result. In Gonzalez v. ITT Industries, IL.W.C. 16303, 09 I.W.C.C. 1182, 2009 WL 5067488 (Nov. 9, 2009), the petitioner was not entitled to TTD after he was released with a light-duty restriction when all employees had been laid off due to the economy. The Commission concluded that the petitioner was not temporarily totally disabled because the release to light-duty work fundamentally meant that he was not totally disabled. Since the petitioner was not placed at a disadvantage over the able-bodied employees, he was not entitled to TTD. In other words, because all of the employees were laid off, the petitioner had not been treated any differently than his co-workers. Finally, the Commission questioned whether the petitioner needed restrictions because he testified that there had been a change in his condition since the accident, even though his doctor eventually released him at MMI. According to Gonzalez, when a petitioner is laid off, consideration must be given to whom is affected by the layoff, the extent of the petitioner’s restrictions and whether it is possible to show that the petitioner is at MMI. Gonzalez is likely to be appealed, and we will keep you advised when the judiciary resolves the issue raised in that case.

In Residential Carpentry, Inc. v. Illinois Workers’ Compensation Comm’n, 389 Ill. App. 3d 975, 910 N.E.2d 109, 331 Ill. Dec. 36 (3d Dist. 2009), the petitioner was performing work as a carpenter. On the date of the occurrence, the petitioner claims that he noticed a sharp pain in his shoulder. The petitioner underwent conservative treatment, including injection and physical therapy. The petitioner’s treating physician recommended surgery even though the petitioner had slight improvement.

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The petitioner testified that the respondent refused to authorize the procedure. The petitioner returned to work and then alleged an aggravation/injury. The petitioner was examined by a treating physician and was placed on some work restrictions, which were honored by the respondent. Approximately one and one-half years later, the petitioner was laid off. The petitioner testified that he unsuccessfully attempted to be rehired by the employer. He claimed that he attended regular union meetings in an effort to secure employment. The petitioner testified that he had a conversation with the respondent’s superintendent, who told him that they were “not busy” but that there were “problems” with respect to the petitioner’s last job and that he would be better off to seek employment elsewhere. The petitioner testified that he attempted to obtain a position with 15 to 20 other contractors, and the petitioner did keep and introduced a written log documenting his efforts in looking for work. Medically, the petitioner continued under the care of his treating physician, who continued to suggest that the petitioner undergo surgery. At trial, the employer presented testimony of the safety director. The safety director testified that he did not discuss the petitioner’s restricted duty request for work with the petitioner’s supervisor. The safety director testified that the petitioner never contacted him with respect to employment, but at the same time the safety director testified that he did not make decisions regarding hiring. The safety superintendent testified that at the time of trial, there were some light-duty jobs available. The arbitrator awarded the petitioner 28 weeks of TTD benefits and also ordered that the respondent pay for reasonable related medical expenses and approve the surgical procedure that was recommended by the treating physician. Penalties and attorneys’ fees were imposed for refusal to approve that surgery. On the issue of temporary total disability, the Appellate Court noted that to be entitled to TTD benefits, the petitioner must show not only that he did not work but that he could not work. Archer Daniels Midland Co. v. Industrial Comm’n, 138 Ill. 2d 107, 561 N.E.2d 623, 149 Ill. Dec. 253 (1990). The Appellate Court stated that in this particular case the dispute was not over whether the petitioner’s condition has stabilized; rather, the issue “is whether the claimant’s condition renders him totally disabled.” On this issue of whether or not the petitioner was totally disabled, the respondent pointed out that the petitioner worked his regular job for 25 months before being laid off. The Appellate Court noted that the petitioner’s treating physician did impose work restrictions on the petitioner, which were honored, and the petitioner continued to work the final 17 months in a capacity that was less than full work duty. The Appellate Court then noted that because the petitioner was able to work in some capacity despite his condition means that the petitioner was not “obviously unemployable,” so it stated that the petitioner then had to establish that there was no employment available to a person in his condition. This reasoning suggests that once it is shown that the petitioner is “not obviously

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unemployable,” the burden actually shifts to the petitioner to establish that there is no employment available to him or her. To this end, the Appellate Court noted that the petitioner did provide evidence of a diligent job search. (He put into evidence his written job log and also testified that he remained in contact with his union and, from time to time, employer to determine if work was available.) In doing this, the Appellate Court noted that the petitioner “had fulfilled this burden,” and it was for the respondent to show the petitioner was not otherwise employable during this period. In reviewing the record, it noted that the respondent did not fulfill its burden. It did not show that the petitioner was not otherwise employable during this period of time. It noted that merely showing that the petitioner continued to work under medical restrictions did not establish that the petitioner was “otherwise employable.” This is significant because it suggests that even when the petitioner is not at MMI (the petitioner was under restrictions and also had a surgical recommendation), it suggests that there is a requirement on the petitioner to show that he is not “obviously unemployable;” and if he does so, then the burden shifts to the employer. The Appellate Court next considered the petitioner’s argument that the petitioner was laid off for economic reasons, but it concluded that given the evidence, there was an “inference that the respondent was not being forthcoming when it told the claimant it had no work for him.”

d) Terminating TTD Where Employee Fails to Cooperate with Medical Care or Rehabilitation Efforts

The Workers’ Compensation Act provides specific scenarios where an employer may terminate TTD benefits. Under section 19(d), TTD benefits may be suspended or terminated if the employee refuses to submit to medical, surgical, or hospital treatment essential to his recovery or if the employee fails to cooperate in good faith with rehabilitation efforts. See, 820 ILCS 305/19(d); R.D. Masonry, Inc. v. Industrial Comm’n, 215 Ill. 2d 397, 830 N.E.2d 584, 294 Ill. Dec. 172 (2005); Hayden v. Industrial Comm’n, 214 Ill. App. 3d 749, 574 N.E.2d 99, 158 Ill. Dec. 305 (1st Dist. 1991) (holding that TTD justifiably terminated by the employer when the injured employee was unwilling to cooperate with vocational placement efforts). A petitioner’s “unreasonable delay” in choosing to undergo surgery prescribed by his or her treating physician can result in the denial of TTD benefits. Walker v. Industrial Comm’n, 345 Ill. App. 3d 1084, 804 N.E.2d 135, 281 Ill. Dec. 509 (4th Dist. 2004).

e) Terminating TTD Where the Employee Violates Rules Set Forth in a Collective Bargaining Agreement or Policy Handbook

Interstate Scaffolding involved what might be termed a “tenuous” termination – one in which there was not a violation of a clearly defined work rule. Had the employee violated a clearly defined work rule applying to all employees, such as a rule prohibiting employee drug use or

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one imposed through a union agreement, it is possible that the Illinois Supreme Court might have addressed the issue differently. We expect efforts to try to distinguish Interstate Scaffolding when violations of well-defined rules results in termination of employment, and employers then attempt to cut off TTD benefits. II. RECURRING TTD PATTERNS

A. Petitioner Was Off Work and Had Not Yet Returned to Work Prior to the Economic Layoff

In this situation, the petitioner may be owed TTD benefits regardless of the economic layoff because the petitioner’s inability to work is due solely to the injury. From a defense standpoint, our strategy should be to get an opinion that the petitioner is at MMI, either from the treating doctor or through a section 12 IME. We also want to show that the petitioner had no restrictions or can return to his/her usual and customary line of employment. If we can show this, then no TTD benefits will be due and owing. However, we may be required to offer vocational rehabilitation and maintenance benefits during the petitioner’s vocational rehabilitation. If we are required to offer vocational rehabilitation, the goal is to get the petitioner back to work in his/her usual and customary line of employment or get him/her back to work earning at or near the prior earnings in their usual and customary line of employment.

B. Petitioner Returned to Work with Restrictions (Perhaps Light Duty) and the Employer Accommodated the Restrictions at a Lower Wage Rate, and the Petitioner Is Laid Off

It can be argued the petitioner is only entitled to temporary partial disability benefits. The petitioner returned to work and was paid for that work, albeit at a lower wage. The section 8(a) TPD benefit paid represents the inability to work at the former level. If that individual is let go because of an economic layoff, the employer may only have to continue to pay the TPD benefit and not the full TTD rate. The petitioner, to the extent he/she was able to work, was in the same position as the other non-injured workers. See, Gonzalez v. ITT Industries, 07 IL.W.C. 16303, 09 I.W.C.C. 1182, 2009 WL 5067488 (Nov. 9, 2009, Indust. Comm.).

C. The Petitioner Returns to Work with Restrictions to His Former Job, Was Not at MMI, the Employer Accommodated the Restrictions with No Wage Loss, and the Petitioner Is Laid Off

A strong argument can be made for terminating all TTD benefits. Our defense should be to show that the petitioner’s restrictions did not interfere with his job duties. This will require testimony from the employer that the employee did return to his usual and customary line of employment. We should argue that the petitioner was able to perform his usual and customary line of employment. We should again attempt to obtain an opinion that the petitioner is at MMI.

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We should also introduce evidence through the employer that all employees, even those performing the petitioner’s old job, were laid off. We want to be able to show that the economy was the sole reason for the petitioner’s layoff and not the petitioner’s injury.

D. Petitioner Returned to Work with Restrictions, Was Not at MMI, and Was Able to Perform His Former Job Because the Restrictions Do Not Interfere with Job Performance

The defense in this situation should be raised that the petitioner is in no different position than the other non-injured employees who were also let go and is therefore not owed TTD. We again should obtain testimony from the employer that the petitioner was able to perform his usual and customary line of employment despite having the restrictions. We should also attempt to obtain an opinion that the petitioner is at MMI.

E. Petitioner Is at MMI without Restrictions, Returns to Former Employment, Then Laid Off

In this situation, no TTD benefits are due and owing because it is clear that the sole reason for the petitioner’s layoff was the economy. The petitioner’s attorney will more than likely send the petitioner back to the doctor to get a note indicating the petitioner could not return to his former job or is not at MMI. If this does happen, we would need to dispute this with an opinion that the petitioner is at MMI and can return to work without restrictions.

F. Petitioner Is at MMI with Restrictions, Returns to Former Employment, but No Accommodation is Necessary, and Is Then Laid Off

No TTD benefits are due and owing in this situation because petitioner is at MMI. We must again prove that the petitioner is able to perform his usual and customary line of employment even with the restrictions. We should also argue that the petitioner is not entitled to maintenance or vocational rehabilitation because he/she was able to return to his/her former employment with no accommodation.

G. Petitioner Is at MMI with Restrictions, Restrictions Interfere with Regular Job Duties, Employer Accommodated the Restrictions, and Then Petitioner Is Laid Off

Since the petitioner is at MMI, no TTD benefits are due and owing. However, since the restrictions interfere with the petitioner’s regular job duties, it is possible that we would be responsible for vocational rehabilitation and maintenance benefits. If this is the case, the key will be to get the petitioner back to work at or near their prior earnings in order to avoid a section 8(d)1 wage differential. The employer will also want to show that the petitioner was able to perform his/her usual and customary line of employment.

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H. Petitioner Is at MMI with Restrictions, Is Laid Off, then Obtains Same Employment Elsewhere at a Lower Wage

In this situation, the petitioner will likely push for a section 8(d)1 wage differential. Our defense should be that the petitioner has returned to work in his usual and customary line of employment even with his restrictions, so even if the petitioner is earning less, he is unable to prove that he is entitled to a section 8(d)1 wage differential. We will want to develop as broad of a definition of the petitioner’s usual and customary line of employment as possible to include his current employment.

I. Petitioner Is Not at MMI, Obtains Employment Elsewhere After Being Laid Off, Subsequent Employer Accommodates Restrictions at a Lower Wage

Petitioner will argue that she is entitled to temporary partial disability benefits since she is still on light duty. We will want to show that the petitioner is at MMI, and her condition has stabilized to avoid temporary partial disability benefits. We will also want to show that the petitioner’s current job falls within her usual and customary line of employment to avoid a section 8(d)1 wage differential. We may also want to wait it out and see if the petitioner’s wages increase in order to reduce a potential wage differential.

J. Petitioner Is Not at MMI Because She Delays in Arranging Future Surgery/Treatment, Is Working Light Duty at the Same or Reduced Rate, and Is Then Laid Off

In this situation, a strong argument can be made to deny TTD or temporary partial disability benefits. According to section 19(d) of the Act, if a petitioner refuses to submit to medical, surgical, or hospital treatment as is reasonably essential to promote recovery, the Commission may reduce or suspend the compensation of any such injured employee. We should therefore argue that the petitioner’s failure to continue with treatment is the reason she is not at MMI and is not able to return to her former line of employment. See, Walker v. Industrial Comm’n, 345 Ill. App. 3d 1084, 804 N.E.2d 135, 281 Ill. Dec. 509 (4th Dist. 2004).

K. Petitioner Not at MMI, Offered Modified-Duty Work and Refuses, and Is Then Laid Off

No TTD benefits should be due and owing since the petitioner refused to accept a bona fide job offer. The Appellate Court has made clear that if a petitioner does not take a bona fide job offer, benefits will be denied. City of Springfield v. Industrial Comm’n, 216 Ill. App. 3d 1027, 576 N.E.2d 568, 159 Ill. Dec. 899 (4th Dist. 1991). If the petitioner does not accept a bona fide job offer, TTD benefits should be terminated if the employer is going to accommodate the petitioner’s modified-duty restrictions.

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III. LIMITING TTD EXPOSURE DURING LAYOFFS

It should be argued that an employee should not receive TTD benefits (or even wage differential benefits) where the cause of his inability to work is due solely to the economic conditions and not due in any way to his restrictions or inability to find work. The defense should be raised that the petitioner’s medical restrictions are not the reason why the petitioner is not currently working. Additionally, it should be argued that the petitioner is not currently temporarily and totally restricted from work. If the injured worker would not be hired regardless of his physical condition, but rather due to economic conditions, the worker should not be able to receive TTD benefits. It is important to note that if the petitioner’s disability does not impair their ability to find other work, then petitioner is in no worse position than their coworkers who were also laid off for economic reasons. By focusing on whether the petitioner is in the same position as their coworkers who were laid off, this might let us skirt the idea that a petitioner’s ability to look for work is not a factor in the TTD analysis. In the end, if a petitioner cannot find work because economic conditions are tight, then the ultimate burden will default to the employer, and the employer will be required to find work or show that work is available in the same manner as one does in a permanent total disability situation. This might fit into the argument that there must be a showing, regardless of whose burden, that the inability to work results from the disability. The approach to these claims should also be to aggressively pursue a section 12 IME (and perhaps a Functional Capacity Assessment) with the goal of minimizing the petitioner’s restrictions and to actively seek to find them alternative employment. The defense of these claims will be fact oriented and will require that (a) the restrictions are not as severe as claimed, and (b) the restrictions did not interfere with performance of petitioner’s former job, and therefore the petitioner is not temporarily and “totally” disabled. IV. ADDITIONAL TTD ISSUES

A. TTD and Illegal Aliens

The Illinois Workers’ Compensation Act expressly includes aliens in its definition of employee. However, it is unclear whether individuals who are in the United States “illegally” are entitled to benefits under the Act. In a recent case, when a petitioner was unable to return to work in a light-duty capacity solely due to her illegal immigration status, no TTD benefits were owed by the employer. Gomez v. Illinois Sportservice, 03 IL.W.C. 19746, 07 I.W.C.C. 0798, 2007 WL 2152828 (2007). In Gomez, after a work-related injury in July of 2003, the petitioner was restricted to sedentary, then light duty. The employer could not accommodate the restriction and paid the petitioner TTD benefits. When the employer found out that the petitioner had used a false Social Security number at the time of hire, it suspended TTD benefits. At arbitration, the employee’s human

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resource manager testified that the employer could accommodate the light-duty restriction but refused to offer the work because it learned that petitioner was not a U.S. citizen. The arbitrator found that the petitioner could not return to work “solely due to her illegal immigration status” and denied further TTD benefits. The arbitrator did order the employer to pay petitioner’s reasonable and necessary medical expenses. On review, the Commission affirmed the arbitrator’s decision. In Miezio v. Z-Wawel Construction, 00 I.I.C. 0341, 98 IL.W.C. 16088, 2000 WL 33418770 (2000), the petitioner was released to work with restrictions following a work-related injury, but the employer could not accommodate the restrictions. The employer instituted vocational rehabilitation benefits and paid the petitioner TTD until it discovered that the petitioner was not a U.S. citizen. At arbitration, the arbitrator found that the petitioner was not entitled to further TTD benefits because the petitioner was unable to work solely due to his citizenship status. On review, the Commission upheld the decision to deny further TTD benefits. However, the arbitrator found, and the Commission agreed, that the petitioner was entitled to a percentage of loss of the person-as-a-whole. The Commission found that the petitioner was not entitled to wage differential or permanent total disability benefits in part because he was not legally able to return to work in his preinjury capacity. The Commission found it unnecessary to decide whether his citizenship status alone precluded a wage-differential award. TTD benefits may be awarded to undocumented aliens in Illinois. An award of such benefits has been held not to be preempted by federal immigration law. See, Economy Packing Co. v. Illinois Workers’ Compensation Comm’n, 387 Ill. App. 3d 283, 901 N.E.2d 915, 327 Ill. Dec. 182 (1st Dist. 2008).

B. TTD and Failure to Attend IME

If an employer complies with the requirements of section 12 in arranging an IME, a petitioner must attend the scheduled examination. The employer must pay the appropriate travel expenses prior to the scheduled examination and must also schedule the exam at a reasonably convenient time and place. Refusal to attend the exam does allow the employer the right to suspend the payment of temporary total disability benefits. However, those benefits will need to be reinstated once the petitioner does attend the examination. It must also be clear that the petitioner refused to attend an exam. The petitioner will no doubt claim that he/she was unable to attend the exam because he/she could not obtain travel or because of some other issue. The employer should argue that the petitioner simply refused to attend the IME in order for the employee to suspend temporary total disability benefits. See, Anders v. Industrial Comm’n, 332 Ill. App. 3d 501, 773 N.E.2d 746, 266 Ill. Dec. 11 (4th Dist. 2002).

C. TTD and Unemployment Compensation

In Illinois, a petitioner can collect both temporary total disability benefits and unemployment compensation at the same time. The Illinois Supreme Court addressed this issue in Crow’s Hybrid Corn Co. v. Industrial Comm’n, 72 Ill. 2d 168, 380 N.E.2d 777, 20 Ill. Dec. 568 (1978). In Crow’s

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Hybrid Corn, the Supreme Court held that the unemployment compensation statute and the workers’ compensation statute were not mutually exclusive and that the receipt of temporary total disability is not inconsistent with the receipt of unemployment benefits for the same period. The court also noted that the unemployment compensation statute states a petitioner is not eligible for unemployment compensation or should receive reduced benefits if the petitioner is receiving remuneration under the workers’ compensation statute and states that once disability benefits are received, either the unemployment compensation should be reduced or the unemployment compensation fund should be reimbursed. To give the employer credit for the unemployment compensation payments suggests the unemployment compensation fund should be liable for that period of disability for which the petitioner receives unemployment benefits, but is the disability attributable to his employment? The Illinois Workers’ Compensation Commission came to a different conclusion. In Herrera v. Cabrini Retreat Center, Inc., 06 IL.W.C. 5742, 08 I.W.C.C. 0317, 2008 WL 1794742 (2008), the Commission held that the respondent was eligible for an offset of unemployment compensation earnings against temporary total disability benefits pursuant to section 8(j) of the Workers’ Compensation Act. Section 8(j) of the Act contains broader language concerning credits due the employer than that of the unemployment compensation statute and does not specifically address when a petitioner receives unemployment compensation. Why the Commission chose to give a credit to the employer for unemployment benefits rather than the unemployment compensation fund a credit for the TTD payments is not clear. Until the courts in Illinois consider both statutes and decide how they should interact with each other, employers should always seek a credit for the amounts of unemployment compensation received by the petitioner.

D. TTD and Incarceration

The issue of whether or not TTD benefits should be suspended due to incarceration has not been directly addressed in Illinois. In a recent Commission decision, Mills v. AAA Chicago Cartage, Inc., 03 IL.W.C. 023408, 08 I.W.C.C. 0079, 2008 WL 458718 (2008), the petitioner agreed not to collect TTD benefits during the period in which he was incarcerated due to a violation of his probation. The Commission found that the employer was entitled to a credit for the benefits it paid to the petitioner during that time frame. However, neither the arbitrator nor the Commission elaborated as to why this was agreed upon and whether this creates any implications for future scenarios. It should be argued that the petitioner is unable to work due to his/her affirmative act of breaking the law or committing a crime, and therefore TTD benefits can be suspended.

E. TTD and Retirement

If the petitioner was receiving TTD benefits and retires, in order to terminate TTD benefits, the key will be to show that the petitioner could have worked but chose not to when the petitioner retired. In City of Granite City v. Industrial Comm’n, 279 Ill. App. 3d 1087, 666 N.E.2d 827, 217 Ill. Dec. 158 (5th Dist. 1996), the petitioner suffered a knee injury while working as a police officer. Following surgery, the petitioner returned to a light-duty position. He worked intermittently for

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several months until he took disability retirement. The petitioner sought TTD benefits following his retirement. The Illinois Workers’ Compensation Commission denied this request, finding that the petitioner voluntarily left his light-duty job and removed himself from the work force in order to collect a pension. The Appellate Court affirmed the Commission’s decision and noted that the petitioner did not present any evidence demonstrating that his injury had not stabilized, that he had not been released for light-duty work, or that he could not perform light-duty work. However, in Land and Lakes Co. v. Industrial Comm’n, 359 Ill. App. 3d 582, 834 N.E.2d 583, 296 Ill. Dec. 26 (2d Dist. 2005), the Appellate Court noted that there was competent evidence that the petitioner was unable to work and that he retired not by choice but because he needed income. The court distinguished Land and Lakes based on the fact that the petitioner in Land and Lakes could have worked, but instead chose not to work. In order to terminate TTD benefits when the petitioner retires, it must be shown that the petitioner could have worked in some capacity but chose not to when the petitioner retired.

F. Occasional Wages and TTD Liability

The earning of occasional wages does not necessarily preclude temporary total disability benefits. When a petitioner’s medical condition has not stabilized and treatment continues, work as a bus driver for a different employer averaging 3 hours per day, 10 to 15 hours per week, was held to be “occasional” rather than “continuous” work and did not support a denial of TTD. See, Mechanical Devices v. Industrial Comm’n, 344 Ill. App. 3d 752, 800 N.E.2d 819, 279 Ill. Dec. 531 (4th Dist. 2003).

G. TTD Liability and Social Security Benefits

In Schmidgall v. Industrial Comm'n, 268 Ill. App. 3d 845, 644 N.E.2d 1206, 206 Ill. Dec. 153 (4th Dist. 1994), discussed with approval in the Interstate Scaffolding decision, the petitioner had not been released by his physicians to return to work and had elected to receive Social Security disability benefits. The Commission, however, denied his claim for TTD benefits finding that he had withdrawn himself from the work force since he was receiving Social Security pension benefits. The Appellate Court reversed the Commission’s decision, noting that the petitioner was not receiving Social Security benefits because he had left the work force, but rather because he had not been released by his doctor and was not physically capable of working at that time. Applying this analysis more generally, it appears that when an employee has not yet reached MMI and a physician has not released a petitioner to return to work with temporary restrictions, the employee is entitled to TTD benefits. Thus, the result in Schmidgall appears consistent with Interstate Scaffolding.

H. TTD and Unsanitary or Injurious Practices

A suspension of benefits pursuant to section 19(d) is appropriate only after a petition has been properly filed by the employer and an order for suspension has been issued by the Commission.

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Evidence did support a finding that the petitioner was actively retarding his medical recovery in Gallego v. Industrial Comm’n, 168 Ill. App. 3d 259, 522 N.E.2d 692, 119 Ill. Dec. 30 (1st Dist. 1988) (finding that the petitioner was binding his hand in a deliberate attempt to impair circulation and prolong recovery).

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Kevin J. Luther - Partner

Kevin has spent his entire legal career at Heyl Royster, beginning in 1984 in the Peoria office. He has been in the Rockford office since it opened in 1985. Kevin is currently in charge of the firm's workers' compensation practice group. Kevin concentrates his practice in the areas of workers' compensation, employment law, and employer liability. He supervises the workers' compensation, employment law, and employer liability practice groups in the Rockford office. He has represented numerous employers before the Illinois Human Rights Commission and has arbitrated hundreds of workers' compensation claims. He has also tried numerous liability cases to jury verdict. Kevin has co-authored a book with Bruce Bonds of the firm's Urbana office entitled Illinois Workers' Compensation Law, 2009-2010 Edition, which was recently published by West.* The book provides a comprehensive, up-to-date assessment of workers' compensation law in Illinois. He also is the contributing editor of the Workers' Compensation Report for the Illinois Defense Counsel Quarterly. Kevin is a frequent speaker to industry and legal professional groups. Kevin is a member of the Winnebago County Bar Association in its workers' compensation and trial sections. He is a member of the State Bar of Wisconsin, Illinois State Bar Association, and the American Bar Association, and has actively participated in sections relevant to his practice areas. He is a member of the Illinois Association of Defense Trial Counsel (Board of Directors). Significant Cases Arlene Bernardoni v. Huntsman Chemical Corp.,

Applied Frye principle to Illinois workers' compensation in the defense of an occupational disease/exposure claim.

Richard Urbanski v. Deichmueller Construction Co., Defined jurisdictional issue in workers' compensation review.

Publications Illinois Workers’ Compensation Law, 2009-2010

ed. (Vol. 27, Illinois Practice Series), published by West (2009)*

"Economic Disability and Earning Capacity: A Historical Analysis for Wage Differential Claims," Illinois Defense Counsel Quarterly (2006)

"The Normal Daily Activity Exception to Workers' Compensation Claims," Illinois Defense Counsel Quarterly (2004)

"The Age Discrimination in Employment Act: A Seventh Circuit Perspective," Illinois Defense Counsel Quarterly (1998)

"The Impact of Federal Legislation on the Employer/Employee Relationship in Illinois," Illinois Defense Counsel Quarterly (1996)

"An Overview of Repetitive Trauma Claims," Illinois Bar Journal (1992)

Professional Recognition Martindale-Hubbell AV rated Selected as a Leading Lawyer in Illinois. Only

five percent of lawyers in the state are named as Leading Lawyers.

Named to the 2009 Illinois Super Lawyers list. The Super Lawyers selection process is based on peer recognition and professional achievement. Only five percent of the lawyers in each state earn this designation.

Professional Associations Winnebago County Bar Association Illinois State Bar Association State Bar of Wisconsin American Bar Association Illinois Association of Defense Trial Counsel

(Board of Directors) Court Admissions State Courts of Illinois and Wisconsin United States District Court, Northern and

Central Districts of Illinois United States Court of Appeals, Seventh Circuit

Education Juris Doctor, Washington University School of

Law, 1984 Bachelor of Arts-Economics and Mathematics

(Summa Cum Laude), Blackburn University, 1981

* For more information, visit the West website at: http://west.thomson.com/productdetail/159286/40843543/productdetail.aspx

Learn more about our speakers at www.heylroyster.com