Keefe, Campbell & Associates, LLC

Editor’s comment: These questions were asked by a client and we provided our thoughts. We would love to hear yours about these tough issues.

The background to the questions:

Illinois Employer A doesn’t exactly have a light duty program.

The injured worker will eventually be able to return to full work at Illinois Employer A when recovered from an undisputed work injury.

During their recovery, the employer sends them to volunteer in a non-paid position at a not-for-profit organization.

TTD was paid while the employee was showing up and working at the not-for-profit organization.

Their goal was to avoid having the worker sitting at home watching Oprah.

Can the claimant refuse such work?

In the recent ruling in Interstate Scaffolding, the Illinois Supreme Court cited Hartlein v. Illinois Power and Hayden v. IWCC to rule an injured worker who is recovering from injury has to do the work a doctor says they can do.

We feel if they refuse such work, TTD is not due.

Is it vocational rehabilitation to put a worker into a light duty position at a charitable or not-for-profit company?

Without intending to be rude, the answer is nobody knows.

Vocational rehabilitation is not clearly defined in the statute or rules.

We have no problem calling it vocational rehabilitation to put someone into such a position because you are rehabbing them to return to their vocation!

But it truly doesn’t make much of a difference—you owe either temporary total disability or temporary partial disability in Illinois if a worker returns to an unpaid position or a low-paid light duty position while recovering from a work-related injury.

What if they get injured in the light duty position?

See the analysis in the first article above—it may now be compensable.

We don’t agree with it but that appears to be the law in this state and we have to adjust.

We appreciate your thoughts and comments. Please do not hesitate to post them on our award-winning blog.

Editor’s Comment: As we advised, we are licensed by and officers of the courts of this state. Our goal is to provide an academic review of the more controversial decisions we have seen come from the current WC reviewing court members. For representatives of Illinois business, please take a look and “draw your own contusions” from the actual rulings.

We are trying to focus on how the law may be “shaped” by our reviewing courts in comparison to the legislation. One of the more controversial areas which demonstrate this legal phenomenon is the inclusion of overtime in the average weekly wage in this state. If you read the Act, the first sentence of Section 10 patently and simply states

The compensation shall be computed on the basis of the “Average weekly wage” which shall mean the actual earnings of the employee in the employment in which he was working at the time of the injury during the period of 52 weeks ending with the last day of the employee’s last full pay period immediately preceding the date of injury, illness or disablement excluding overtime, and bonus divided by 52;

820 ILCS 305/10 (Emphasis added).

Your editor assures you this statutory language was routinely interpreted for at least seventy years to mean all overtime wages—any and all overtime wages were excluded from the calculation of the average weekly wage for years and years. We assure everyone it was well-settled law and the issue never made it to the reviewing courts until someone in the Plaintiff/Petitioner bar conjured up the matrix we next analyze.

In 1990, the Illinois Appellate Court issued a ruling in Edward Hines Lumber Co. v. Industrial Commission which sent the whole concept tumbling sideways. What the reviewing court did for the first time in Illinois history in the Edward Hines Lumber ruling in a difficult-to-define circumstance was allow the overtime hour into the average weekly without including any concomitant overtime premium. They found “regular and consistent overtime” to be included in the average weekly wage at the straight hourly rate. Everyone continues to argue over what “regular and consistent” might mean.

In 2007, the Illinois Appellate Court reversed the Edward Hines Lumber ruling, sort of. In Airborne Express v. Workers’ Compensation Commission, the Court’s members looked at a situation in which a truck driver was actively bidding on shifts and using seniority to get a job that unquestionably required overtime. The Court’s members, in their wisdom, said this scenario would not allow for the inclusion of the overtime hour in the average weekly wage—they effectively ruled the overtime hour had to be mandated by the employer and not something the employee opted for. The Court continued to “split the baby in half” by only including overtime hour and not the overtime premium pay.

As we indicated in 2007 and continue to advise our clients, readers and law students today, it is our academic view neither ruling “follows” the simple language of the Act. Section 10 is cited for you above and says nothing of “regular and consistent” or “mandatory” or anything like it. We also point out there is no legislative history to the Workers’ Compensation Act so you have to look at the simple “English language” version of the Act to determine what the drafters intended. With deference to the members of the Appellate Court, Workers’ Compensation Division, we feel they found or “created” a rule in Edward Hines Lumber and then modified the rule they initially created without divining in either instance what we feel is the obvious intention of the legislature—to exclude all overtime pay whether mandatory, regular and consistent, straight overtime hour or premium overtime pay.

The next area of controversy is the continued judicial trend demonstrated by intervention of our highest Court into the workers’ compensation arena. We point out the Illinois Supreme Court was initially the venue where all rulings from Circuit Courts were heard—the Supreme Court disliked hearing such reviews so much, they created the Appellate Court, Workers’ Compensation Division for the express purpose of avoiding such matters. Well, the current court appears to have changed that tune, as we outline below.

It does not take a rocket scientist to note, in the last decade, the current members of our Illinois Supreme Court have accepted and considered any number of Illinois Appellate Court, Workers’ Compensation Division rulings and uniformly reversed any and all of them to insure benefits are always awarded on the side of Illinois labor.

The most painful ruling is the most recent. In Interstate Scaffolding, Inc. v. Illinois Workers’ Compensation Commission, our Supreme Court considered an appeal where claimant had a back problem and was working on light duty. He spray-painted graffiti on the employer’s shelving and was fired for it. He then made a claim for TTD after being fired. The Appellate Court, Workers’ Compensation Division issued a solid ruling confirming claimant wasn’t entitled to workers’ comp benefits after being fired for spraying graffiti and not due to his disability or medical care or anything related to the injury.

The dispute was over $5,000. We assure every one of our readers the chances of the Illinois Supreme Court accepting a dispute over that amount of money is infinitesimal—but not in workers’ compensation if it involves the denial of benefits. To the chagrin of just about every defense lawyer, observer and business person in Illinois, our Supreme Court took the case and reversed the Appellate Court, Workers’ Compensation Division. We feel the ruling remains very controversial and is not academically supported by many moderate Plaintiff/Petitioner attorneys across the state.

And most important, our highest Court implemented a new Illinois legal concept for determining when a worker is or is not entitled to temporary total disability—maximum medical improvement or MMI. Our problem with using that concept is the three words don’t appear as a phrase or defined term in the Illinois Workers’ Compensation Act. We are constantly asked by clients and readers how to define it. We are sorry to say there were no legislative hearings on the topic and your guess is therefore as good as ours or anyone else’s.

We also point out hundreds of workers all across this state return to work long before their doctors find them to be MMI. We truly don’t feel it makes common sense to say a worker who has returned to full or light duty is simultaneously somehow entitled to TTD. Whether you like it or not, that is the ruling of our highest court and we will continue to struggle with it.

The prior ruling by the Illinois Supreme Court we feel was controversial was the Beelman Trucking ruling in which the Appellate Court would not allow a statutory total and permanent claimant to get any benefits from his employer other than lifetime total and permanent weekly benefits. We assure our readers the perception of most WC regulars on both sides was the highest benefit an injured worker could receive was total and permanent disability benefits for life. But you have to remember, this is Illinois. In this case, the Supreme Court accepted certiorari and for the first time in Illinois history allowed double weekly benefits for both total and permanent disability and loss of use of specific body parts.

Other controversial Supreme Court workers’ comp rulings in the last decade include Sisbro where a truck driver who stepped out of truck was denied benefits because his foot was so degenerated from a non-work-related medical condition any activity of daily life might cause it to fracture. The Appellate Court, Workers’ Compensation wrote an excellent ruling that denied benefits based on longstanding Illinois law. The Supreme Court reversed their ruling on the facts.

And, as we reported last week, in Twice Over Clean, our highest court accepted a denial on a heart attack case where claimant’s own doctor said claimant’s heart was so bad he might have had an attack brushing his teeth. The Appellate Court again followed longstanding Illinois law and denied benefits—the Supreme Court took the case and reversed to insure benefits were awarded.

In summary, over the last decade, the only appellate ruling we feel favored Illinois business is Airborne Express that we analyze above. In our view, on case after reported case, the Appellate Court, Workers’ Compensation Division either rules for the interests of Illinois labor or the Illinois Supreme Court accepts the case and has uniformly reversed every denial. We open this Update article for rebuttal—if you or any reader feels there is a pro-business ruling out there in the last decade that we have missed, please send it along and we will be happy to publish it and correct this statement.

Please note there are lots of folks who want things to run in favor of Illinois labor and we want to make it clear there is nothing underhanded or implicitly “wrong” with the rulings by our reviewing courts. We just don’t think their rulings provide much grist for crucial issues like the jobs atmosphere or economic recovery, unless you feel economic recovery comes from paying lots and lots of money to injured workers who then spend it and thereby boost the economy. It is our reasoned view any balance on Illinois WC legal rulings has tilted very strongly to the labor side and we hope the fall elections may bring more equilibrium to the WC legal system in this state.

We appreciate your thoughts and comments. Please do not hesitate to post them on our award-winning blog; for information on how to do, see below.

Editor’s comment: If you closely follow developments in Illinois WC, you may have had time to read last week’s KC&A Update on this new unanimous ruling by our Illinois Supreme Court. We are completely baffled about most aspects of the decision. We want to assure our readers there are attorneys on both sides who are shaking the heads and wondering what to do now. Our readers have sent us other defense firms’ reviews of the ruling and we haven’t seen a single one that provides any real insight on what to do next.

Does TTD now equal MMI when it never did before?

What is so unusual about the ruling that our entire community is in shock? Well, there are two major issues. As we advised last week, for the first time in about 100 years of Illinois WC history, the Supreme Court created a completely new “rule” that possibly equates the period temporary total disability or TTD is potentially due to be the entire period of medical care. If that is what their ruling means, we truly feel this contradicts literally thousands of Workers’ Compensation Commission decisions/rulings over the ages. Everyone in the Illinois workers’ comp community on both sides along with Arbitrators and Commissioners has always viewed the period TTD is due to be all periods a doctor says you have to be off work. TTD has never been due the entire time you are under the care of a doctor when that doctor says you can work at either full or light work while treating.

Please also remember some folks never lose any time from work despite some times severe injuries—are they entitled to TTD? Can that make any sense? We knew a salesman who was hit by a car and severely injured with multiple surgeries and periods of recovery—he was still on his cell phone and selling widgets while in the intensive care unit and during all periods he was conscious. That same person is still under the active care of doctors to present and has never stopped working. The idea he would be owed TTD is blurring to most seasoned WC professionals. Trust us, he didn’t want it when he was first injured and doesn’t want it now.

In fact, one of the main reasons independent medical exams have been used in TTD disputes from time immemorial is to set up a legal dispute over the proper period a doctor on one side or the other says an injured worker can and should be off work and therefore entitled to TTD. Arbitrators have been taught to lean towards the treaters in resolving the dispute but their focus has never been on whether claimant is MMI or not—they always focus on what the competing medical opinions have been in analyzing what to do about cutting off or continuing TTD long prior to claimant being MMI. We think most Arbitrators will be somewhat baffled about what to do now in light of what may or may not be a new rule that may or may not “stick.”

This is a direct quote from the new ruling:

The Act provides incentive for the injured employee to strive toward recovery and the goal of returning to gainful employment by providing that 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) (West 2004); R.D. Masonry, Inc. v. Industrial Comm’n, 215 Ill. 2d 397 (2005). Benefits may also be suspended or terminated if the employee refuses work falling within the physical restrictions prescribed by his doctor. See 820 ILCS 305/8(d) (West 2004); Hartlein v. Illinois Power Co., 151 Ill. 2d 142, 166 (1992); Hayden v. Industrial Comm’n, 214 Ill. App. 3d 749 (1991) (TTD justifiably terminated by the employer, under the Act, when the injured employee was unwilling to cooperate with vocational placement efforts).

The court then goes on to say being terminated from light work while an injured worker is still treating does not end the right to TTD.

What is ‘foreign’ and what is ‘domestic’ in our statutory scheme?

The second and more baffling aspect of this Justice Burke’s new ruling is the word “foreign” that appears twice in the ruling. The Court first says:

A thorough examination of the Act reveals that it contains no provision for the denial, suspension, or termination of TTD benefits as a result of an employee’s discharge by his employer. Nor does the Act condition TTD benefits on whether there has been “cause” for the employee’s dismissal. Such an inquiry is foreign to the Illinois workers’ compensation system.

They later say:

Whether an employee has been discharged for a valid cause, or whether the discharge violates some public policy, are matters foreign to workers’ compensation cases. An injured employee’s entitlement to TTD benefits is a completely separate issue and may not be conditioned on the propriety of the discharge.

Well, now. When the injured employee is released to light work, thousands of prior Illinois WC decisions at every level indicate benefits may be suspended if the employee refuses work within the physical restrictions prescribed by a doctor. You may note that language is lifted from the first box quote above where the court cites both Hartlien and Hayden. We assure you the language in the second sentence of this paragraph is “foreign” to our Act because it comes solely from judicial rulings—the specific language is not contained in any provision of the Illinois Workers’ Compensation Act. It clearly isn’t contained in 820 ILCS 305/8(d) because TTD benefits are outlined in 820 ILCS 305/8(b).

Lots of legal concepts that we all debate every day at the IWCC are arguably “foreign” to the Act. For one simple example, you may note there is no provision of the Act which specifically allows Arbitrators to evaluate permanent disability and their actions to do so are arguably “foreign” to the Act; in most states evaluation of permanent disability is done only by doctors. We are fairly confident we aren’t going to see lots more decisions from reviewing courts that continue to debate what is “foreign” versus what is “domestic” or clearly outlined in Illinois workers’ compensation law.

Prior to the issuance of Interstate Scaffolding on January 22, 2010, most folks in our industry felt the worker was “refusing work” when he/she did something dopey and got fired for a bona fide reason while still being treated but on full or light work. We think the reason the issue never was litigated is the claimant side of the bar agreed with that approach.

So Waddawedonow?

Well, we sometimes feel you have to see what will ‘stick’ in this industry and what won’t. We want our readers to understand a couple of things. First, in our view, only the forces of the Illinois Trial Lawyers Ass’n have the pull to get the current Illinois Supreme Court to take on a workers’ comp dispute over a measly $5,000.00 and then obtain a majority decision that is completely galling to all employers across the country. That issue by itself is cause for concern; please remember the majority of the members of this Court are currently up for re-election. The Illinois citizenry and voters have to carefully weigh whether we want to continue to insult existing and potential employers when our state is struggling in the worst economy of our lifetimes.

Second, we have no idea if the Supreme Court has killed light duty—our concern is what to do if claimant’s counsels become wily and tell their clients to start pulling shenanigans to get fired while on light work to insure they get TTD and maybe qualify for very lucrative wage loss benefits. Our approach is to continue to follow the quote above that continues to be good law and solid advice for all risk, insurance, safety and benefits folks to remember: “Benefits may also be suspended or terminated if the employee refuses work falling within the physical restrictions prescribed by his doctor.” The question is will Arbitrators and the Commission truly view an employee’s actions in derogation of their right to work at full or light duty while still treating to be a refusal to work.

Third, if you have to fire an injured worker on light duty for even the most bona fide reason, immediately consider either an informal or formal labor market survey to document work available within their restrictions. An informal labor market survey is one you do on www.monster.com or another similar web site or three. A formal LMS is performed by a certified vocational counselor with concomitant expense. We hope either one may protect you from penalties or fees in any future dispute that becomes litigated in the fashion of Interstate Scaffolding. Please understand we are not confident about anything in the Illinois WC matrix right now and this is one approach—let us know if you have any others.

Fourth, whatever we do, start driving MMI to avoid this debate. How do you drive MMI? We still feel the best and cheapest way is UR or utilization review. Other tools are independent medical exams or setting up your own workers’ comp doctor’s network that can be done in a number of ways. If you have interest in these concepts, send a reply.

Finally, try like the dickens to avoid this whole mess by simply settling disputed claims and/or avoiding workers’ comp litigation to begin with—we hate to say it but the Commission and reviewing courts continue to be mildly to wildly unfriendly to the needs and concerns of Illinois business. We are certain you don’t want to fire an injured worker on light duty for committing a crime and then have to restart TTD. If your injured workers don’t come to the Commission and courts, they aren’t going to hear about these concepts from anyone. If you want our thoughts and ideas on how to minimize workers’ comp litigation, send a reply.

As always please send your thoughts and comments or post them on our award-winning blog.

Editor’s comment: From the perspective of Illinois employers, we don’t consider this just a problematic ruling from this Court; we consider it one of the most difficult and anti-business decisions in recent years to ingest as attorneys and counselors for Illinois employers; especially employers that have problematic employees. We are unsure why the Supreme Court chose to take on this case, as it is our impression our colleagues on the other side of the bar previously took no particular exception to termination of the worker and suspension of TTD when their clients engaged in such shenanigans. You may note the Supreme and Appellate Court agreed it was a matter of first impression or the first reported case on the issue—the reason may have been both sides supported the prior concept and didn’t want such issues litigated. We feel this ruling may be one of those “no bad deed goes unrewarded” outcomes.

In Interstate Scaffolding, Inc. v. Illinois Workers’ Compensation Commission, (Docket No. 107852 January 22, 2010), our Supreme Court considered an appeal where claimant had an undisputed back problem and was working on light duty. He spray-painted graffiti on the employer’s shelving or equipment and was fired for it. He then made a claim for TTD after being fired. The Arbitrator denied it, the Commission awarded it and the Appellate Court issued a solid ruling confirming claimant wasn’t entitled to workers’ comp benefits after being fired for spraying graffiti and not due to his disability or medical care or anything related to the injury.

Difficult message we keep seeing sent from the highest court to the lower court that usually and capably handles WC appeals—don’t do anything that isn’t pro-labor.

Well, the Supreme Court took the case and reversed the Appellate Court, Workers’ Compensation Division and awarded claimant about $5,000 in TTD. The first aspect of this ruling that we consider poorly reasoned and anti-business is the message sent back to the Appellate Court, Workers’ Compensation Division. There has been one defense ruling in about a decade from the Appellate Court, Workers’ Compensation Division; Airborne Express which took out non-mandatory overtime from the average weekly wage. Every other moderate or slightly pro-business ruling by our Appellate Court, Workers’ Comp Division has been accepted for appeal and then reversed by our Illinois Supreme to supplant reasonable or moderate rulings with concepts that wildly favor Illinois labor. In this continuing rotten economy with double-digit unemployment, we would prefer to see greater consideration for the interests of Illinois business to both lure new employers and jobs to our state along with keeping existing employers within our borders. This ruling sends the wrong message.

Don’t the members of our highest court understand Illinois employers don’t want to have to pay benefits when claimants commit crimes?

The second aspect of this ruling we consider unfavorable to business is our highest court looked at a situation where an individual had clearly and unequivocally broken the law—it is our understanding from the record this claimant spray-painted graffiti on his employer’s shelving or equipment. We caution our readers we are unaware of the worker actually being charged with a crime but we also have no concern that, if the employer decided to have him charged, he would have been convicted based upon the undisputed evidence in the record. We ask all the attorneys on both sides, along with risk, safety and health managers and claims adjusters who read this—if your worker spray-painted graffiti in your work-place, would that be a crime? Should the Commission and courts reward such behavior with additional statutory benefits?

So we can all read their ruling and understand our Illinois Supreme Court has arguably awarded over $5,000 to someone who violated Illinois law. This is the second such ruling from the Illinois reviewing courts this past year where benefits were awarded when crimes were committed. You may recall the Bassgar ruling from October 2009 where the employee was convicted of battery in a fight with his supervisor and still got full benefits for his “accidental injuries” from fighting with the supervisor. Being convicted of a crime doesn’t appear to bother some members of the Illinois workers’ compensation community—as lawyers and officers of the courts of this state, it truly bothers us.

We are confused–should all employers/carriers/TPA’s pay only TTD when workers are on light duty?

Is temporary partial disability or TPD ended as a legal concept as fast as labor got it enacted in 2006?

This decision has what appears to be an inherent contradiction or paradoxical inference when applied to the basic principles of workers’ compensation law and benefits. The court appears to seemingly skip the troublesome word “total” in temporary total disability. The claimant in Interstate Scaffolding returned to work—he wasn’t temporary totally disabled. Both sides agree he was partially disabled but there is no question he had recovered sufficiently to return to some sort of work before getting out his spray-can and getting “canned” himself. No one questions the fact he wasn’t getting TTD while working light duty prior to getting fired he received regular pay. We note he didn’t ask for TTD prior to being fired. After this ruling, should all claimant attorneys start to ask for TTD even though their clients are working; albeit at light work?

The Commission and courts got tied up in defining “maximum medical improvement” as their sole legal basis to terminate the right and duties involving temporary total disability. However, with respect to the Court, we do not feel this should be the measure for TTD entitlement, as it completely fails to consider light duty status as a basis to end TTD and pay regular pay. Therefore, if you apply the literal meaning of Interstate Scaffolding ruling; you would continue to owe any claimant temporary total disability after they were back to light duty work!

Who just discovered MMI and why/where/how did we recently uncover it in the same Act that has been around 100 years?

How does that happen? Well, our highest court has set down what we consider a new rule that TTD is always owed until claimant is at “maximum medical improvement” or MMI. As a preliminary matter, we want our readers to understand those three words do not appear in the Workers’ Compensation Act or Rules Governing Practice and appear to be another “new discovery” in an Act that is about 100 years old. It is our view these three words are being brought into Illinois workers’ comp law via judicial legislation without hearings or anyone in the legislature signing off on them after testimony in the Illinois House and Senate or after other investigation.

We point out there is no particular or reliable legal definition of MMI you can work off from Illinois legislative language, history or other resources. We ask the rhetorical question—what if a treating doctor says the worker is generally recovered and okay to work with some accommodation but come back in a year for a final check-up? When would MMI be reached? Do you owe another year of TTD?

We next point out every claimant on light work is arguably not at MMI—they are on medically modified duty as part of the recovery process. Anyone who understands basic principles of workers’ compensation understands workers can work at light or modified work long before they are fully recovered and continue to need medical care. In fact, part of most injured workers’ recovery is the period of light work where they are able to slowly and smoothly pick up their old tools and take their time but get back to a functional existence at their former job. No one in such a setting is at “maximum medical improvement” by definition—they are still under the active care and supervision of a doctor, physical or occupational therapist.

The question you have to ask after this unusual ruling—are all injured workers entitled to TTD only? By that we mean, if a worker returns to light or medically modified duty prior to MMI, it appears our highest court has now ruled they can only receive TTD. If so, what in tarnation is temporary partial disability or TPD and why did the legislature bother with it? Has our highest court stripped out or rendered useless that relatively new portion of the Act just four years after its enactment?

Please also remember Illinois municipal workers are allowed a year of regular pay while recovering from a work injury—what do they now get while off work; regular pay or TTD? Are they now entitled to both TTD and regular pay? If they don’t get both, do they get TTD as this court suggests when back to work on light duty?

We certainly don’t think our Commission and reviewing courts intended this bizarre and confusing outcome. We have never seen anyone working and being paid a regular wage at light duty that was also entitled to full TTD—we feel this ruling may either imply or require such an outcome. However, we do not recommend paying both TTD and wages at this time.

The Big Picture—Illinois courts keep inventing new stuff to trap and trip risk, safety and claims managers

The big picture on this mess is everyone on both sides was happy for about 100 years to see workers on light duty getting regular pay. If the worker on light duty did something egregious, illegal or inappropriate, our advice was to let them go and not pay any further benefits. There is now a very defined risk to doing so in this nutty state—we are confident folks who aren’t as informed as you are going to get caught in this new snare because it simply makes good common sense to fire and not pay someone who is illegally spray-painting their employer’s workplace. Our advice to everyone is contact us about firing anyone who has or might make a workers’ compensation or occupational disease claim.

If you are wondering how well-settled Illinois law has again wildly changed after about 100 years of implementation of our Act and Rules, we have to admit we are as confused as you. Please forward your thoughts and comments on this new ruling or post them on our award-winning blog.

Editor’s comment: While the duty to pay TTD when restricted from full work and after a job search shows lack of employability is in line with prior Illinois holdings, the denial of partially unrelated care resulting in penalties/fees appears to open a door to even more hardship for Illinois employers who will be penalized at times of what appears to be “true controversy” which should provide a defense to penalties. On a final note, the Court did note penalties and fees under the WC Act were sufficient to protect the injured employee’s interests and denied Supreme Court Rule 375 sanctions.

In Residential Carpentry v. The Workers’ Compensation Commission (No. 3-08-0122WC March 27, 2009), Plaintiff Tibbitts filed an Application for Adjustment of Claim alleging a work-related injury to his shoulder. The Arbitrator found Claimant credible and awarded him 28 weeks temporary total disability (TTD), existing and prospective medical expenses, as well as penalties and attorney fees. The Workers’ Compensation Commission adopted that decision, and the Will County Circuit Court confirmed its decision. Respondent Residential Carpentry appealed the TTD and penalties and fees.

The Appellate Court also noted claimant’s request for sanctions under Supreme Court Rule 375 (155 Ill. 2d R. 375) to “hopefully minimize the need for injured workers to have to endure this process to this extent in the future.” The Court noted imposition of sanctions under this rule is a matter “left strictly to our discretion” and further noted they believed the fees and penalties imposed by the Commission adequately protect that interest and rejected claimant’s request.

It was noted Petitioner worked light duty for a period of approximately 17 months prior to layoff and only requested TTD after layoff resulted in his claimed inability to locate employment. The layoff was for purely economic reasons and Respondent argued this fact should result in denial of TTD. From the decision, it appears TTD would more than likely have been denied except for the fact of a job search which met the standard of the Archer Daniels Midland case in which it was noted evidence of a diligent search for employment was sufficient to show claimant was not employable resulting in TTD being owed. This job search including search logs and ongoing union contacts to locate work shifted the burden to Respondent to show work would have been available and it does not appear any evidence was presented on behalf of Respondent to show there may have been work available.

In relation to the appeal of penalties and fees, Respondent asserted its refusal was reasonable under the circumstances because a portion of the condition of claimant’s shoulder was not related to his employment and Respondent did authorize the repair of claimant’s rotator cuff, and it only denied authorization for the clavicle resection portion of the surgery which was in dispute. The Court noted the Arbitrator correctly observed it would not be reasonable to have a doctor operate on one part of claimant’s shoulder, but not on another part that could be addressed during the same procedure. In essence, it was not reasonable for Respondent to attempt to subdivide a region of claimant’s body in a manner contrary to how it would be treated in the normal course of medical practice. The Court refused to state the Commission’s decisions to award claimant fees and penalties were against the manifest weight of the evidence due to testimony of the treating physician relating the entire condition.

This case is another example of the proposition confirming TTD will be due if work is shown to be unavailable to an injured worker. The more disturbing issue raised is the systemic penalty at every level to a Respondent who—while agreeing to pay for the portion of a procedure deemed related—refused full authorization based upon a medical dispute based upon a medical opinion from Dr. Betzelos who denied relation of a portion of the condition and was penalized for their decision to rely on a medical opinion providing the basis for the dispute. While we are sure most Petitioner attorneys will trot out the age old “IME doctor gets paid for his opinion” adage to pooh-pooh the legitimacy of the dispute, it should be noted that the treating physician also gets paid—generally at a higher rate of WC claims and also always has an “interest” in obtaining approval for expensive procedures. If Respondents are to now try to determine whether they will be penalized for relying on an expert, the employees of the state can start house hunting in our sister states now because the only thing slowing down the exodus out of Illinois will be the annual road construction which has started to slow the travel.

This article was researched and written by Shawn R. Biery, J.D. If you have thoughts and comments or need the case citation, please send a reply to sbiery@keefe-law.com.

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