TTD LIABILITY AND MASS LAYOFFS

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1 TTD LIABILITY AND MASS LAYOFFS Presented and Prepared by: Brad A. Antonacci Rockford, Illinois The cases and materials presented here are in summary and outline form. To be certain of their applicability and use for specific claims, we recommend the entire opinions and statutes be read and counsel consulted. Heyl, Royster, Voelker & Allen PEORIA SPRINGFIELD URBANA ROCKFORD EDWARDSVILLE 2009 Heyl, Royster, Voelker & Allen L-1

2 TTD LIABILITY AND MASS LAYOFFS I. GENERAL ENTITLEMENT TO AND DURATION OF TTD BENEFITS IN ILLINOIS... L-4 II. ECONOMIC LAYOFFS AND TTD BENEFITS... L-5 A. Case Law... L-5 B. Scenarios... L-7 1. Claimant Was Off Work and Had Not Yet Returned to Work Prior to the Economic Layoff... L-7 2. Claimant Returned to Work With Restrictions (Perhaps Light Duty) and the Employer Accommodated the Restrictions at a Lower Wage Rate, and the Claimant Is Laid Off... L-7 3. The Claimant Returns to Work With Restrictions to His/Her Former Job, Was Not at MMI, the Employer Accommodated the Restrictions With No Wage Loss, and the Claimant Is Laid Off... L-8 4. Claimant 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... L-8 5. Claimant Is at MMI Without Restrictions, Returns to Former Employment, Then Laid Off... L-8 6. Claimant Is at MMI With Restrictions, Returns to Former Employment But No Accommodation Is Necessary, and Is Then Laid Off... L-8 7. Claimant Is at MMI With Restrictions, Restrictions Interfere With Regular Job Duties, Employer Accommodated the Restrictions, and Then Claimant Is Laid Off... L-9 8. Claimant Is at MMI With Restrictions, Is Laid Off, Then Obtains Same Employment Elsewhere at a Lower Wage... L-9 9. Claimant Is Not at MMI, Obtains Employment Elsewhere After Being Laid Off, Subsequent Employer Accommodates Restrictions at a Lower Wage... L Claimant 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... L Claimant Not at MMI, Offered Light-Duty Work and Refuses, and Is Then Laid Off... L-10 L-2

3 C. Limiting TTD Exposure During Layoffs... L-10 III. TTD AND ADDITIONAL ISSUES... L-10 A. TTD and Illegal Aliens... L-10 B. TTD and Failure to Attend IME... L-11 C. TTD and Unemployment Compensation... L-12 D. TTD and Incarceration... L-12 E. TTD and Voluntary Termination... L-13 F. TTD and Retirement... L-14 G. TTD and Social Security Benefits... L-15 L-3

4 TTD LIABILITY AND MASS LAYOFFS I. GENERAL ENTITLEMENT TO AND DURATION OF TTD BENEFITS IN ILLINOIS 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. 2000). 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 claimant 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. 2000). The factors to consider in deciding whether a claimant s condition has stabilized include: (1) a release to return to work; (2) the medical testimony about the claimant s injury; and (3) the extent of the injury. 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 claimant 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 claimant 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 claimant has recovered to the full extent. In Lukasik, while the record reflected that the claimant 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 claimant s failure to seek any employment following his release for light work, and the Court therefore denied TTD benefits at that point. L-4

5 II. ECONOMIC LAYOFFS AND TTD BENEFITS A. Case Law Three Illinois court decisions and one very recent Commission decision (McLaughlin v. Fischer Paper Products, Inc., 09 IWCC 0029 (January 13, 2009) address a claimant s entitlement to TTD benefits where the claimant is on restrictions and is laid off due to economic reasons. In each case, the employee was released to return to work with restrictions but then was laid off for economic conditions. In affirming the Commission s decision to award TTD benefits while the employee was off work due to economic layoff, the courts focused on whether the employee was off work due to the restrictions or purely economic reasons. Where the employee s medical restrictions and inability to perform his usual employment impaired his ability to work, the fact that the employee had been laid off did not alter the TTD analysis. This conclusion is deemed consistent with the overriding purpose of the Illinois Workers Compensation Act to compensate an employee for all lost earnings resulting from a work-related disability. In Ford Motor Co. v. Industrial Comm n, 126 Ill. App. 3d 739, 467 N.E.2d 1018, 81 Ill. Dec. 896 (1st Dist. 1984), the issue concerned the claimant s entitlement to TTD following a release to return to work with restrictions and a subsequent layoff due to economic reasons. The Appellate Court affirmed the Commission s finding that the claimant was entitled to continuing TTD benefits despite his economic layoff. In affirming the Commission s decision, the Appellate Court observed: The Industrial Commission could properly find from the evidence that, even if there had been no layoff, the claimant was able to do only light work during the layoff period. At the time he left the plant on layoff, he was under instruction by the company doctor to stay off his ankle. When the period ended, he was unable to perform his regular job because of pain in his ankle; and was, in fact, taken off that work and placed on light duty. Ford Motor Co., 126 Ill. App. 3d at 743. Thus, the employee s restrictions and inability to perform his usual employment, and not his economic related layoff, caused him to miss work. The claimant was, therefore, entitled to TTD benefits during the economic layoff. The same result was reached in National Lock Co. v. Industrial Comm n, 166 Ill. App. 3d 160, 519 N.E.2d 1172, 117 Ill. Dec. 5 (2d Dist. 1988), where the Appellate Court affirmed the Commission s award of TTD benefits during an economic layoff. Using the same reasoning as in Ford Motor, the Commission noted that the employee could have continued working for the respondent had the restrictions arising from her work injury not prevented her from bumping into another job. The claimant s lost time, therefore, was due to her injury-related restrictions and not the economic conditions that prevailed at that time. L-5

6 In Zenith Co. v. Industrial Comm n, 91 Ill.2d 278, 437 N.E.2d 628, 62 Ill. Dec. 940 (1982), the Illinois Supreme Court upheld an award of TTD benefits to an employee who was placed on light duty and was subsequently laid off. The claimant had sustained back injuries at work and was released to return to work with restrictions of light duty only. The claimant requested light-duty work, but the employer advised him that light-duty work was unavailable. The employer then laid off the claimant. The Court rejected the employer s argument that the claimant was laid off because no work was available, not because of any disability. The Court further dismissed the employer s contention that claimant was working and that he was no longer treating. In each case, the Court held that it is the nature of the restrictions and the claimant s ability or inability to return to the former line of work, and not the per se economic layoff that guides the Commission s decision to award TTD benefits. Even with an economic layoff, the issue focuses on whether the employee s injury and restrictions prevented a return to his or her usual and customary line of employment. The most recent Commission decision on the issue is McLaughlin v. Fischer Paper Products, Inc., 09 IWCC 0029 (Jan. 13, 2009). In McLaughlin, the parties stipulated that the claimant was temporarily totally disabled from October 12, 2004, through March 29, 2006, and that she was laid off on March 29, 2006, for economic reasons. The parties also stipulated that several other employees were laid off as well. The claimant stipulated that the layoff of the employees was due to economic reasons as well. The medical testimony was that during the period in question, the claimant was limited to light-duty work, that she would benefit from additional treatment, and that she was not yet at maximum medical improvement. According to the Commission, the claimant remained temporarily totally disabled and was not accommodated by [her employer]. The Commission awarded TTD benefits for the period of March 30, 2006, the date of the layoff, through the date of hearing in February As the Commission noted: Petitioner stipulated that her light-duty work with Respondent ended due to lack of work. Respondent contends that because the layoff was due to lack of work, they have no liability for temporary total disability during this period. Where an employer stops providing work to a claimant who remains under work restrictions and has not reached maximum medical improvement, the employer remains obligated to pay compensation for temporary total disability even though the employer stops providing work because of a lack of work. The Commission rejected the employer s argument that an economic layoff should preclude TTD benefits and focused on the fact that the claimant had restrictions relating to the employment injury and the fact that she had not yet reached MMI. L-6

7 In a 1994 Commission decision, Lorek v. Gross Common Carrier, Inc., 94 IIC 0375, 92 WC 2289 (IWCC March 15, 1994), the claimant initially worked for the respondent as a hand trucker. He then worked as a painter for the respondent when he was laid off. Following the layoff, the claimant was recalled as a replacement parts hanger. Following this, the claimant then went to a doctor and was placed on light duty. The claimant continued to work light duty. He eventually underwent a right carpal tunnel release surgery and again returned to light-duty work. However, the claimant was then laid off in line of seniority with a number of other workers. The claimant was to go back to his orthopedic physician to determine his work restrictions, but he failed to do so. The claimant also claimed that he looked for a job after being laid off but was unable to find employment. In denying TTD benefits, the Commission found it significant that the claimant provided no evidence that he was refused employment because of his work restrictions when he continued to look for work. The Commission also found it significant that there was no evidence that the claimant could not perform the jobs he sought. Presumably, if the claimant went to a business seeking employment, he at least felt he could perform the job. It is not clear from the decision that the claimant had reached MMI, but it appears that the Commission denied TTD benefits at least partially due to the fact that the claimant was to go back to his physician to determine his work restrictions but failed to do so. B. Scenarios 1. Claimant Was Off Work and Had Not Yet Returned to Work Prior to the Economic Layoff In this situation, the claimant will be owed TTD benefits regardless of the economic layoff because the claimant s inability to work is due solely to the injury. From a defense standpoint, our strategy should be to get an opinion that the claimant is at MMI, either from the treating doctor or through a section 12 IME. We also want to show that the claimant 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 claimant s vocational rehabilitation. If we are required to offer vocational rehabilitation, the goal is to get the claimant 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. 2. Claimant Returned to Work With Restrictions (Perhaps Light Duty) and the Employer Accommodated the Restrictions at a Lower Wage Rate, and the Claimant Is Laid Off A strong case can be made that the claimant is entitled to temporary partial disability benefits only. The claimant 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 should only have to continue to L-7

8 pay the TPD benefit and not the full wage. The claimant, to the extent he/she was able to work, was in the same position as the other non-injured workers. 3. The Claimant Returns to Work With Restrictions to His Former Job, Was Not at MMI, the Employer Accommodated the Restrictions With No Wage Loss, and the Claimant Is Laid Off A strong argument can be made for terminating all TTD benefits. Our defense should be to show that the claimant 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 claimant was able to perform his usual and customary line of employment. We should again attempt to obtain an opinion that the claimant is at MMI. We should also introduce evidence through the employer that all employees, even those performing the claimant s old job, were laid off. We want to be able to show that the economy was the sole reason for the claimant s layoff and not the claimant s injury. 4. Claimant 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 claimant 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 claimant 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 claimant is at MMI. 5. Claimant 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 claimant s layoff was the economy. The claimant s attorney will more than likely send the claimant back to the doctor to get a note indicating the claimant 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 claimant is at MMI and can return to work without restrictions. 6. Claimant 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 claimant is at MMI. We must again prove that the claimant is able to perform his usual and customary line of employment even with the restrictions. We should also argue that the claimant is not entitled to maintenance or vocational rehabilitation because he/she was able to return to his/her former employment with no accommodation. L-8

9 7. Claimant Is at MMI With Restrictions, Restrictions Interfere With Regular Job Duties, Employer Accommodated the Restrictions, and Then Claimant Is Laid Off Since the claimant is at MMI, no TTD benefits are due and owing. However, since the restrictions interfere with the claimant 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 claimant 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 claimant was able to perform his/her usual and customary line of employment. 8. Claimant Is at MMI With Restrictions, Is Laid Off, Then Obtains Same Employment Elsewhere at a Lower Wage In this situation, the claimant will likely push for a section 8(d)1 wage differential. Our defense should be that the claimant has returned to work in his usual and customary line of employment even with his restrictions, so even if the claimant 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 claimant s usual and customary line of employment as possible to include his current employment. 9. Claimant Is Not at MMI, Obtains Employment Elsewhere After Being Laid Off, Subsequent Employer Accommodates Restrictions at a Lower Wage Claimant 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 claimant is at MMI and her condition has stabilized to avoid temporary partial disability benefits. We will also want to show that the claimant 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 claimant s wages increase in order to reduce a potential wage differential. 10. Claimant 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 claimant 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 claimant 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. L-9

10 11. Claimant Not at MMI, Offered Light-Duty Work and Refuses, and Is Then Laid Off In this situation, we should argue that no TTD benefits are due and owing since the claimant refused to accept a bona fide job offer. The Appellate Court has made clear that if a claimant 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 claimant does not accept a bona fide job offer, TTD benefits should be terminated if the employer is going to accommodate the claimant s light-duty restrictions. C. 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 claimant s medical restrictions are not the reason why the claimant is not currently working. Additionally, it should be argued that the claimant 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 claimant s disability does not impair their ability to find other work, then claimant is in no worse position than their coworkers who were also laid off for economic reasons. By focusing on whether the claimant is in the same position as their coworkers who were laid off, this might let us skirt the idea that a claimant s ability to look for work is not a factor in the TTD analysis. In the end, if a claimant 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 claimant 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 claimant s former job. III. TTD AND ADDITIONAL 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 claimant was unable to return to work in a light- L-10

11 duty capacity solely due to her illegal immigration status, no TTD benefits were owed by the employer. Gomez v. Illinois Sportservice, 03 WC 19746, 07 IWCC 0798 (2007). In Gomez, after a work-related injury in July of 2003, the claimant was restricted to sedentary, then light duty. The employer could not accommodate the restriction and paid the claimant TTD benefits. When the employer found out that the claimant had used a false Social Security number at the time of hire, it suspended TTD benefits. At arbitration, the employer s human resource manager testified that the employer could accommodate the light-duty restriction but refused to offer the work because it learned that claimant was not a U.S. citizen. The arbitrator found that the claimant 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 claimant s reasonable and necessary medical expenses. On review, the Commission affirmed the arbitrator s decision. In Miezio v. Z-Wawel Construction, 00 IIC 0341, 98 WC (2000), the claimant 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 claimant TTD until it discovered that the claimant was not a U.S. citizen. At arbitration, the arbitrator found that the claimant was not entitled to further TTD benefits because the claimant 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 claimant was entitled to a percentage of loss of the person-as-awhole. The Commission found that the claimant 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 pre-injury capacity. The Commission found it unnecessary to decide whether his citizenship status alone precluded a wage differential award. The Commission has not denied all benefits due to a claimant s illegal immigration status. However, if the claimant is unable to return to work solely because of an illegal immigration status, the Commission will deny both temporary and permanent benefits which are based upon that inability to return to work. B. TTD and Failure to Attend IME If an employer complies with the requirements of section 12 in arranging an IME, a claimant 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 claimant does attend the examination. It must also be clear that the claimant refused to attend an exam. The claimant 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 claimant simply refused to attend the IME, in order for the employee to suspend temporary total disability benefits. L-11

12 C. TTD and Unemployment Compensation In Illinois, a claimant 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 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 claimant is not eligible for unemployment compensation or should receive reduced benefits if the claimant 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 claimant receives unemployment benefits, but is the disability attributable to his employment? The Workers Compensation Commission came to a different conclusion. In Herrera v. Cabrini Retreat Center, Inc., 06 WC 5742, 08 IWCC 0317 (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 claimant 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 claimant. 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 WC , 08 IWCC 0079 (2008), the claimant 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 claimant 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 claimant 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. L-12

13 E. TTD and Voluntary Termination The workers compensation division of the Appellate Court recently held that an employee on light duty is not entitled to collect TTD benefits after he voluntarily removes himself from the work force for reasons unrelated to his injury. Interstate Scaffolding, Inc. v. Workers Compensation Comm n, 385 Ill. App. 3d 1040, 1045, 896 N.E.2d 1132, 324 Ill. Dec. 913 (3d Dist. 2008). In Interstate Scaffolding, the claimant was a union carpenter by trade, and sustained workrelated injuries to his head and neck in July of The claimant received medical care, and was eventually allowed to return to work by his treating physician subject to certain lifting restrictions. His employer was able to accommodate these restrictions, and the claimant worked light duty on a regular basis from starting in February, The employee testified that in April 2005 he used a permanent marker to write religious inscriptions on the walls and shelves in a storage room on the employer s premises. The claimant admitted that he did not have permission to write these inscriptions and that the writings did not pertain in any way to his job duties. The claimant testified that other employees were aware that he authored the inscriptions and that there was other graffiti and writings which preexisted his inscriptions. However, there was no other place on the employer s premises where non-work-related slogans or writings appeared on the walls, shelves, or fixtures other than this storage room. In late May of 2005, the employee contacted the payroll department to give notice of the fact that he had been overpaid and no payroll taxes were being withheld from several of his recent paychecks. This precipitated a confrontation between the claimant and the assistant to the employer s president. The exact discussions held between the claimant and the assistant during this heated meeting were in dispute. However, the claimant shortly thereafter contacted the local police department to file a complaint that he was being harassed and discriminated against on account of his religious beliefs. A police officer was dispatched to the employer s facility, who then interviewed various individuals and wrote a report. No arrests were made, and no one was charged with a crime. The assistant contacted the employer s president, who was out of town at the time, to report the incident and the fact that the claimant had notified the police. The assistant then informed the employer s president for the first time about religious inscriptions that had been made on the walls and shelves in the storage room by the claimant. The employer s president shortly thereafter terminated the claimant for defacing company property. Since the overriding purpose of the Illinois Workers Compensation Act is to compensate an employee for lost earnings resulting from a work-related disability, the Court concluded that an employee should not be allowed to collect TTD benefits after he was removed from the work force as result of volitional conduct that was unrelated to his injury. The Court reasoned that if an employee was allowed to collect TTD benefits in such circumstances that would not advance the goal of compensating an employee for a work-related injury but rather provide a windfall to employees dismissed for unrelated causes. Lastly, the Court held that this same rationale should be applied as well to situations where an employee was dismissed while collecting maintenance benefits as part of a vocational rehabilitation or a trial return to work. L-13

14 The two dissenting members of the Court agreed with the general proposition that TTD benefits could be discontinued to a light-duty employee that was terminated from the work force as a result of his volitional acts of conduct that are unrelated to the disabling condition. However, the dissent argued that the majority's decision was incomplete because it lacked standards for a practical application of this new principle. The dissent went on to argue that before TTD benefits can be terminated in these situations, that the employer should have the burden to establish: (a) that the employee violated a rule or policy; (b) that the employee was fired for a violation of that rule or policy; (c) that the violation would ordinarily result in the termination of a non-disabled employee; and (d) that the violation was a voluntary act within the control of the employee and not caused by the employee s disability. On December 2, 2008, the Appellate Court denied a petition for rehearing but certified the case for appeal to the Illinois Supreme Court. In any event, this case is a bit of fresh air for an employer who is forced to terminate for cause a non-compliant or unruly employee who is working on light duty. Nevertheless, the prudent employer will attempt to meet the more rigorous test outlined by the dissent when faced with a similar factual scenario. This conservative approach should ensure that the denial of payment of TTD benefits following the termination date will be upheld. Also, adhering to this more rigorous standard should be beneficial in the defense of possible collateral litigation such as a wrongful termination suit which could later arise. Employers would still be wise to contact knowledgeable legal counsel before taking any disciplinary action or terminating an employee who is working on a light-duty basis. F. TTD and Retirement If the claimant was receiving TTD benefits and retires, in order to terminate TTD benefits, the key will be to show that the claimant could have worked but chose not to when the claimant 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 claimant suffered a knee injury while working as a police officer. Following surgery, the claimant returned to a light-duty position. He worked intermittently for several months until he took disability retirement. The claimant sought TTD benefits following his retirement. The Workers Compensation Commission denied this request, finding that the claimant voluntarily left his light-duty job and removed himself from the workforce in order to collect a pension. The Appellate Court affirmed the Commission s decision and noted that the claimant 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 claimant 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 claimant in Land and Lakes could have worked but instead chose not to work. L-14

15 In order to terminate TTD benefits when the claimant retires, it must be shown that the claimant could have worked in some capacity but chose not to when the claimant retired. G. TTD and Social Security Benefits If the claimant is receiving TTD benefits and also begins to receive Social Security benefits, in order to terminate TTD benefits, the critical inquiry is once again whether or not the claimant voluntarily removed himself from the workforce. In Schmidgall v. Industrial Comm n, 268 Ill. App. 3d 845, 644 N.E.2d 1206, 206 Ill. Dec. 153 (4th Dist. 1994), following the claimant s work injury, the claimant worked in a light-duty capacity until his doctor took him off work. At that time, the respondent began paying TTD benefits. A few months later, the claimant also began receiving Social Security benefits. The Workers Compensation Commission held that the claimant was precluded from receiving TTD benefits once he began receiving Social Security because the claimant had removed himself from the workforce. The Appellate Court, however, disagreed, reasoning that the claimant had not voluntarily removed himself from the workforce. Rather, the claimant s doctor had removed the claimant from the workforce by not releasing him to return to work. The Court noted that a recipient of Social Security retirement benefits is not required to remove himself from the workforce in order to receive benefits. As the Court noted, the more logical choice would be to reduce or offset the claimant s Social Security benefits based on the amount of temporary total disability benefits received. As noted in this decision, claimant s Social Security benefits will be reduced or offset based on the amount of temporary total disability benefits received. However, if we are able to prove that the claimant voluntarily removed himself from the workforce, no TTD benefits will be due and owing. L-15

16 Brad A. Antonacci - Associate A native of Hampshire, Illinois, Brad served as an editor of the Bar Review at Northern Illinois University College of Law. After graduating from law school in 2002, Brad joined Heyl Royster as an associate in the Rockford office. Brad concentrates his practice in the area of workers' compensation and civil litigation. He has arbitrated numerous workers' compensation claims. Selected Publications "Personal Comfort Doctrine," IDC Quarterly (2008) Professional Associations Illinois State Bar Association Winnebago County Bar Association American Bar Association Court Admissions State Courts of Illinois United States District Court, Northern District of Illinois Education Juris Doctor, Northern Illinois University School of Law, 2002 Bachelor of Arts-Sociology, University of Illinois, 1999 L-16 Learn more about our speakers at