Fascinating defense decision from the Appellate Court about a worker on light duty terminated for cause unrelated to his injury—is he still entitled to TTD?
Editor’s comment: This decision is so defense and common-sense oriented; it is hard to believe it will actually be followed by the Commission and our courts in the future. We are going to have to take a wait-and-see approach on this one, folks. Trust us, the question gets asked all the time.
In Interstate Scaffolding, Inc. v. The Workers’ Compensation Commission, (No. 3-07-0801WC October 15, 2008), a 3-2 split appellate majority was faced with a claimant who was on light duty work. Claimant was employed by Respondent as a union carpenter. On July 2, 2003, he suffered a work-related injury to his head and neck and sought medical treatment. His physician eventually authorized claimant to return to work subject to certain lifting restrictions, and claimant began working light duty for Respondent at one of its facilities. At the arbitration hearing on his application for adjustment of claim, claimant testified the work provided by Respondent was within the restrictions prescribed by his doctor.
Claimant continued to work light duty on a regular basis until his employment was terminated. With respect to the events leading to his discharge, claimant testified he had written religious inscriptions on the walls and shelves in a storage room on respondent’s premises. Claimant stated he wrote the inscriptions with permanent marker and some of his coworkers were aware of the writings. Claimant also indicated there was other graffiti and drawings on the storage-room shelves prior to when he made the inscriptions. Nevertheless, claimant acknowledged he did not have permission from respondent to write on the walls and shelves. He also stated the writings did not pertain in any way to his job duties with Respondent and, aside from the storage room, at no other location on respondent’s premises did non-work-related slogans or writings appear on the walls, affixed shelves, or elsewhere.
On May 25, 2005, claimant brought his paycheck to an employee in respondent’s payroll department. Claimant contacted the payroll department because he had been overpaid and because no federal taxes were being withheld from his paycheck. Claimant testified he had received other paychecks that contained overpayments and he “didn’t want to get accused for not saying anything.” After claimant spoke to the payroll worker, she contacted an assistant to Respondent’s president. According to claimant, the assistant to the president approached him, called him a “hypocrite,” and stated that if he believed the religious slogans he had written on Respondent’s premises, he would have brought the erroneous paychecks to respondent’s attention. Weeks earlier, the assistant to the president testified claimant responded he “deserved those wages” and he was a “union worker.”
In response to the confrontation, claimant contacted the police department, complaining he was being harassed and discriminated against because of his religious beliefs. A police officer came to Respondent’s facility, interviewed various individuals, and wrote a report. However, no arrests were made, and no one was charged with any crime.
The president was later contacted to report the incident and the fact claimant had contacted the police. At that time, the assistant informed Respondent’s president for the first time about the writings claimant had made on the walls and shelves in the storage room. The president subsequently instructed claimant’s supervisor, to terminate claimant for defacing company property.
The Arbitrator denied benefits and the Commission reversed. The Circuit Court affirmed the Commission. Most defense observers assumed the Appellate Court would state something about the “manifest weight of the evidence” standard and affirm. Instead, the appellate majority ruled that after the employee was discharged from employment, for reasons unrelated to his work related injury, defacing company property, he was no longer entitled to TTD benefits, despite his continued medical inability to return to full duties as carpenter.
The questions that remain unanswered and will continue to be asked are what to do when the employee is given light work that is clearly within his/her medical restrictions and refuses to do it, misses work or otherwise fights the process. Our recommendation in such situations is to document, document, and document. Don’t hesitate to email or call us for legal guidance on these tough cases. Get a video camera if possible and take lots of pictures of the employee so you can demonstrate to the Arbitrator and Commission failure to comply. Provide oral warnings and then write the employee up to make sure he or she understands what you are doing and why. Terminate as a last resort. And we will then have to wait and see if the Commission and courts follow this ruling.
If you have thoughts or comments, please send a reply. The web link for the ruling is: http://www.state.il.us/court/Opinions/AppellateCourt/2008/3rdDistrict/October/3070801WC.pdf
