12-1-2020; In IL WC, When is Claimant Entitled to TTD?; Two New IL Arbitrators Appointed and more

Synopsis: In IL WC, When is Claimant Entitled to TTD (Temporary Total Disability)?

Editor’s comment: I have had so many WC attorneys and others question this simple concept, I figured it was time to give my readers my best thoughts.

I want to start this article with an example that presumes these claim facts—Claimant suffered an accepted work-related injury. The worker’s claim for WC benefits was accepted by the employer/insurance carrier/TPA. Medical care was provided at the employer’s cost. Lost time benefits, TTD was paid. When can the employer terminate TTD?

Please note there are different factors that may lead to termination of TTD in the Illinois WC system. 

First, the employee could pass away—if that occurs, there are two potential outcomes but TTD would end on the passing of the worker—you don’t and can’t owe “temporary total disability” to someone who has passed. If the injured worker passed from “injury-related” causes, the claim would morph into a death claim and death benefits might be due if there is a spouse or dependent family members as outlined in Section 7 of the IL WC Act. If you aren’t sure of handling of death benefits, send a reply and I am happy to outline and advise on anything needed.

On the other hand, if the employee passed from non-work-related causes, let’s say as an example, a cancer that had nothing to do with the work event, temporary benefits would end with the passing of the worker—permanency/impairment might lie for an existing injury. There are a number of issues that would need to be resolved for the estate to get PPD—again, if you need advice, send a reply and I will get you answers.

Next, we can debate whether a typical WC claim involving medically modified work restrictions will have TTD owing based on the treater’s work recommendations/restrictions or whether the status of “MMI” or maximum medical improvement is to be the guide. I want to carefully restate again—TTD can depend on

• Work restrictions provided by the treater or IME docs or

• MMI or the end of active and work-related medical care.

In my view, work restrictions from a treater or IME doc should “trump” or take precedence over MMI. First and most important, getting a worker back into the workforce by itself is, to some extent, “medical care” and can lead to stronger medical outcomes. Also, it is possible for treaters to be less than cognizant of the importance of MMI to a WC claim. We will see doctors setting appointments weeks and months in the future for a final checkout of the patient’s recovery—if a doctor does that, it shouldn’t link to months or years of eligibility to receive TTD, should it?

When the injured employee reaches the status that our Illinois courts have adopted from other states that is called “maximum medical improvement,” the worker has reached a medical plateau and no longer is in the active and ongoing care of a physician or other healthcare giver. In routine medical parlance, you will see doctors or nurses put notes into a medical chart that says “return PRN” which means any return by the patient for further care is “per required need.”  

Please always remember what I also call “Gene’s Rule”—if a worker doesn’t get medical attention or stops seeing a medical caregiver, they don’t need it. No doctor in the U.S. can “force” someone to get medical care—the man or woman has to consent to the care and attend the needed medical sessions, be it examinations, diagnostics, physical or occtherapy, Pharma care and other modalities. If they are disinterested or tired of seeing doctors, I feel you can treat them as being at MMI. I feel many of our great and professional IL WC Arbitrators and Commissioners take the same position.

It has always been my focus to tell risk managers, claims adjusters, attorneys on both sides and support staff—if you are going to successfully handle a WC claim, you need a “target date” or some reasonable expectation of when an injured worker will reach both RTW—light and full and then MMI from any given injury. It isn’t rocket science. For example, take a 45-year-old factory worker with a broken ankle and a single surgery—how long should that man or woman be off all work and under the active care of a physician? I would suggest lost time should be two weeks if there is light work available and six weeks if not. I would suggest MMI should be reached  in 60-90 days. Each case can be somewhat unique but the median for both RTW and MMI are generally simple to predict and implement.

So What About Restrictions? If Claimant has Work Restrictions and Doesn’t Return to Their Former Job, isn’t TTD due?

Work restrictions create a two-part challenge for IL employers. First, it is arguably “against the law” or a violation of ADA to fire someone who suffered an injury and has restrictions that might still allow them to do the essential job duties of their former position (assuming you still had an open spot). All U.S. employers are supposed to have an “interactive discussion” with the worker to see if you can place them in an open position and reasonably accommodate their restrictions. If you need help with this concept, send a reply.

If the worker has reached MMI and has restrictions and the employer doesn’t have a position available—the worker is not yet entitled to TTD. I assure all of my readers something is missing.

Please Note an IL Worker is NOT Entitled to Unemployment Compensation Simply Because They Lose Their Job. An IL Worker with Restrictions isn’t Entitled to TTD Simply Because They Don’t Have Work!

This isn’t a trick question—an IL Worker who is entitled to Unemployment Compensation when/if they lose their job has to be looking for work and document that job search for IDES—the IL Dept. of Employment Security. Similarly an IL Worker who is at MMI and might be entitled to TTD when off work has to be looking for work.

I recommend claims adjusters and risk managers and defense attorneys make it clear to any Claimant or their attorney when the injured worker approaches MMI—please start looking for work within your abilities and asserted restrictions so you might remain entitled to TTD. Please tell the Claimant or their attorney, if there is one involved, you are going to need documentation of the work search and/or job search logs to support your continued payment of TTD.

Right now, as you read this, I/we have claim after claim in our office where Claimant has restrictions and we are asking their attorney, in writing, for job search logs. Some attorneys are confirming their clients are looking for work and provide written documentation. Others are fighting the request and clowning around and asserting their client’s restrictions clearly make the worker a total and permanent disability. Thankfully, the Arbitrators and Commissioners in this State are still calmly asking why Claimant is at MMI and isn’t doing a documented job search. Those hearing officers are quietly telling Claimant’s counsel to complete their trial preparation by documenting in writing efforts to seek work. Please note within less than five years, the IL Minimum Wage is going to be $15 per hour—anyone with any full-time IL job is going to be making around $600.00 a week or more.

I appreciate your thoughts and comments. Please post them on our award-winning blog.

Synopsis: Two New Illinois WC Arbitrators appointed. Please remember Illinois is a one-party Democratic State and we expect these new appointments to be somewhat liberal and pro-employee. We are also sure they are consummate professionals and will closely follow the IL WC Act and Rules. The appointments are subject to IL Senate approval.

Rachael Sinnen will serve as an Arbitrator for the Workers’ Compensation Commission. Currently, she is an Associate Attorney at Elfenbaum, Evers & Zielinska, P.C. where she represents the majority of the firm’s Spanish-speaking clients in their workers’ compensation claims. This is the second attorney from that Claimant firm to be selected as an Arbitrator. Previously, Ms. Sinnen worked at a variety of law firms as an Associate Attorney and Law Clerk, in addition to serving as an volunteer coach in Trial Advocacy. In addition, Ms. Sinnen is the Vice Chairwoman of the Young Lawyers’ Section of the Workers’ Compensation Lawyers Association. She received her Bachelor of Business Administration in Finance, her Bachelor of Arts in Spanish and her Master of Business Administration in Finance from Loyola University Chicago. She went on to earn her Juris Doctor from Chicago Kent College of Law.
 
Raychel Wesley will serve as an Arbitrator for the Workers’ Compensation Commission. She served as the Domestic Violence Staff Attorney at Prairie State Legal Services where she covers issues such as orders of protection and civil no-contact. Previously, she was an attorney at a variety of law firms in Illinois. Wesley is a founding member of the Black Bar Association of Will County and is active in giving back to her community. She received her Bachelor of Science in Business Education from DePaul University, her Juris Doctor from DePaul University College of Law, and a certification in Paralegal Studies from Roosevelt University.  

Synopsis: We have an important new Indiana WC defense verdict you should know about: Gilley’s Antique Mall v. Sarver: Plaintiffs cannot add new defendants after the two year statute of limitations runs. Article and analysis by our IN WC Defense Team Leader, Kevin Boyle, J.D.

Editor’s comment: It doesn’t happen very often, but we have a newly published Indiana Court of Appeals decision on an important statute of limitations worker’s compensation issue. The case is Gilley’s Antique Mall v. Sarver, __ N.E.3d. __, 2020 WL 5808386 (Sept. 30, 2020). Plaintiff fell through a roof while he worked on a job site, sought medical treatment and then continued working on the project until it’s completion. The opinion did not discuss whether the claim was accepted or whether benefits and treatment were paid for. Eventually an Application for Adjustment of Claim was filed before two years from the date of the injury. Two years and four months after the date of injury, Plaintiff filed an Amended Application asserting claims against other defendants when it turned out the original defendant didn’t worker’s compensation insurance coverage. Ten months after that Amended Application, another Amended Application was filed to add another defendant. Defendants filed a motion to dismiss for failure to add them to the case within the two year limitation period set forth in IC 22-3-3-3. The Single Hearing Member granted the motion and dismissed those defendants. The Full Board reversed and allowed the late additions under 631 IAC 1-1-7 and the secondary liability provisions of the Act.

The Indiana Court of Appeals reversed the Full Board, and dismissed the Defendants. In summary, the Court held that allowing plaintiff to add new defendants extended the statute of limitations without authorization, it was erroneous and contrary to the Act. Nowhere in IC 22-3-1-3 is the Board delegated authority to increase the two year statute of limitations for filing claims.

The two year cut off has always been, and with this ruling, still is, very important to consider. Please keep this in mind with any new claims that come up after the two years from the date of injury. The two year deadline may also apply to your claims where plaintiff does not file an Application against any defendant, too. If you have any issues like these, please contact me and let’s discuss the potential defense.

Kevin can be reached at kboyle@keefe-law.com.