TTD FACT SCENARIOS: INTERSTATE SCAFFOLDING CASE AND HOW TO SUSPEND TTD Presented and Prepared by:
Kevin J. Luther
[email protected]
Rockford, Illinois • 815.963.4454
Heyl, Royster, Voelker & Allen
PEORIA • SPRINGFIELD • URBANA • ROCKFORD • EDWARDSVILLE
© 2010 Heyl, Royster, Voelker & Allen
15547628_4.DOCX
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TTD FACT SCENARIOS:
INTERSTATE SCAFFOLDING CASE AND HOW TO SUSPEND TTD
I.
GENERAL TTD PRINCIPLES ...................................................................................................................... G-4
A.
Supreme Court Addresses Propriety of TTD Termination
Where Employee Is Fired for Violating Company Rules ................................................ G-4
1.
2.
3.
4.
II.
Factual Background ...................................................................................................... G-5
Procedural History ........................................................................................................ G-5
Supreme Court Analysis ............................................................................................. G-6
What Does Interstate Scaffolding Mean in
Other TTD Termination Settings? ........................................................................... G-7
RECURRING TTD PATTERNS .................................................................................................................G-11
A.
Petitioner Was Off Work and Had Not Yet Returned to
Work Prior to the Economic Layoff .....................................................................................G-11
B.
Petitioner Returned to Work with Restrictions
(Perhaps Light Duty) and the Employer Accommodated
the Restrictions at a Lower Wage Rate, and the
Petitioner Is Laid Off .................................................................................................................G-11
C.
The Petitioner Returns to Work with Restrictions to
His Former Job, Was Not at MMI, the Employer
Accommodated the Restrictions with No Wage Loss,
and the Petitioner Is Laid Off .................................................................................................G-11
D.
Petitioner Returned to Work with Restrictions, Was Not
at MMI, and Was Able to Perform His Former Job Because
the Restrictions Do Not Interfere with Job Performance ............................................G-12
E.
Petitioner Is at MMI without Restrictions, Returns to Former
Employment, Then Laid Off ....................................................................................................G-12
F.
Petitioner Is at MMI with Restrictions, Returns to Former
Employment, but No Accommodation is Necessary,
and Is Then Laid Off ..................................................................................................................G-12
G.
Petitioner Is at MMI with Restrictions, Restrictions Interfere
with Regular Job Duties, Employer Accommodated the
Restrictions, and Then Petitioner Is Laid Off ....................................................................G-12
H.
Petitioner Is at MMI with Restrictions, Is Laid Off, then Obtains
Same Employment Elsewhere at a Lower Wage ............................................................G-13
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I.
Petitioner Is Not at MMI, Obtains Employment Elsewhere
After Being Laid Off, Subsequent Employer Accommodates
Restrictions at a Lower Wage ................................................................................................G-13
J.
Petitioner Is Not at MMI Because She Delays
in Arranging Future Surgery/Treatment, Is Working
Light Duty at the Same or Reduced Rate,
and Is Then Laid Off ..................................................................................................................G-13
K.
Petitioner Not at MMI, Offered Modified-Duty Work and
Refuses, and Is Then Laid Off ................................................................................................G-13
III.
LIMITING TTD EXPOSURE DURING LAYOFFS .................................................................................G-14
IV.
ADDITIONAL TTD ISSUES .......................................................................................................................G-14
A.
B.
C.
D.
E.
F.
G.
H.
TTD and Illegal Aliens ..............................................................................................................G-14
TTD and Failure to Attend IME..............................................................................................G-15
TTD and Unemployment Compensation ..........................................................................G-15
TTD and Incarceration ..............................................................................................................G-16
TTD and Retirement ..................................................................................................................G-16
Occasional Wages and TTD Liability ...................................................................................G-17
TTD Liability and Social Security Benefits .........................................................................G-17
TTD and Unsanitary or Injurious Practices ........................................................................G-17
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TTD FACT SCENARIOS:
INTERSTATE SCAFFOLDING CASE AND HOW TO SUSPEND TTD
I.
GENERAL TTD PRINCIPLES
Temporary total disability benefits are awarded for the period of time from when an employee is
injured until he/she has recovered as far as the character of the injury will permit. Mechanical
Devices v. Industrial Comm'n, 344 Ill. App. 3d 752, 760, 800 N.E.2d 819, 279 Ill. Dec. 531 (4th Dist.
2003). A person is considered totally disabled when he or she cannot perform any services
except those that are so limited in quantity, dependability, or quality that there is no reasonably
stable market for them. Dolce v. Industrial Comm'n, 286 Ill. App. 3d 117, 122, 675 N.E.2d 175,
221 Ill. Dec. 268 (1st Dist. 1996).
The dispositive test for determining TTD duration is whether the petitioner’s condition has
stabilized, i.e., reached maximum medical improvement (MMI). Mechanical Devices v. Industrial
Comm'n, 344 Ill. App. 3d 752, 759, 800 N.E.2d 819, 279 Ill. Dec. 531 (4th Dist. 2003). The factors
to consider in deciding whether a petitioner’s condition has stabilized include: (1) a release to
return to work; (2) the medical testimony about the petitioner’s injury; and (3) the extent of the
injury; and (4) whether the injury has stabilized. Land and Lakes Co. v. Industrial Comm'n, 359 Ill.
App. 3d 582, 594, 834 N.E.2d 583, 296 Ill. Dec. 26 (2d Dist. 2005). This test sets the outer
boundary for TTD benefits and a demarcation between entitlement to TTD benefits and
permanency. A person may not have reached MMI but is nevertheless no longer receiving TTD
benefits because he is back to work and performing his former job, even with restrictions.
A petitioner seeking TTD benefits must prove not only that he did not work but also that he was
unable to work. Anders v. Industrial Comm'n, 332 Ill. App. 3d 501, 507, 773 N.E.2d 746, 266 Ill.
Dec. 11 (4th Dist. 2002). However, “unable to work” does not mean that the petitioner is
obligated to look for other work.
In Lukasik v. Industrial Comm'n, 124 Ill. App. 3d 609, 615, 465 N.E.2d 528, 80 Ill. Dec. 416 (1st
Dist. 1984), the court did note that the period of temporary total disability may terminate before
the petitioner has recovered to the full extent. In Lukasik, while the record reflected that the
petitioner may not have fully recovered as of the date TTD was terminated, the Appellate Court
found that the Commission could properly have determined that he was no longer totally
disabled and unable to work. The court found no basis from the evidence to justify petitioner’s
failure to seek any employment following his release for light work, and the court therefore
denied TTD benefits at that point.
A.
Supreme Court Addresses Propriety of TTD Termination Where Employee Is
Fired for Violating Company Rules
On January 22, 2010, the Illinois Supreme Court issued its much-awaited decision in Interstate
Scaffolding, Inc. v. Illinois Workers’ Compensation Comm’n, 236 Ill. 2d 132, 923 N.E.2d 266, 337 Ill.
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Dec. 707 (2010). The issue before the court was whether an employer’s obligation to pay
temporary total disability (TTD) workers’ compensation benefits to an employee ceases when
the employee is terminated for conduct unrelated to the injury. The Supreme Court broadly held
that an employer’s obligation to pay TTD benefits continues until the employee’s medical
condition has stabilized or until the petitioner is capable of reentering the work force. This
month’s issue of Below the Red Line focuses on the Interstate Scaffolding decision and the effect
it may have on how employers handle other TTD issues.
1.
Factual Background
The petitioner, Jeff Urban, an employee of Interstate Scaffolding, injured his head, neck, and
back in an accident while in the course and scope of his employment. His physician released him
for light duty, and he continued to work for Interstate Scaffolding in that capacity. After writing
some religious “graffiti” on a wall in a storage room on the employer’s premises, he was fired for
defacement of property. Following his termination, the employer ceased paying his TTD
benefits.
2.
Procedural History
Arbitrator Hennessy heard the case and determined that the petitioner’s TTD benefits ended on
the date of his termination for cause. According to the arbitrator’s decision, “[n]otwithstanding
the divisive, conflicting testimony regarding the arguments and confrontations of May 25, 2005,
at the [employer’s] place of business and the unusual basis for the termination of the Petitioner,
this Arbitrator finds the Petitioner is not entitled to temporary total disability benefits
subsequent to his termination of May 25, 2005.” Interstate Scaffolding, 236 Ill. 2d at 139.
Arbitrator Hennessy did not provide any explanation for the termination of the TTD benefits
after the petitioner’s termination.
On review, the Illinois Workers’ Compensation Commission overturned Arbitrator Hennessey’s
ruling and held that the petitioner was entitled to TTD benefits beyond the date of his
termination “based on the fact that [the claimant’s] condition had not stabilized as of the June
29, 2005, Arbitrator’s hearing.” Id. at 143. The Commission did not make any findings with
regard to Urban’s termination. The circuit court confirmed the Commission’s decision, and the
matter proceeded to the Appellate Court, Workers’ Compensation Division, which in a 3-2
decision reversed the Commission’s decision on the issue of TTD. The court concluded that
although the petitioner’s condition had not stabilized and even the employer’s IME had opined
a need for cervical surgery, he was not entitled to TTD benefits because he was terminated “for
cause” on May 25, 2005.
In reaching this decision, The Appellate Court majority reviewed several factually similar Illinois
decisions and concluded that “the critical inquiry in determining whether the employee is
entitled to TTD benefits after leaving the work force centers on whether the departure was
voluntary.” Id. The majority believed that the petitioner, by violating work rules and defacing
company property, had voluntarily withdrawn himself from the work force and therefore was not
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entitled to continued TTD benefits. According to the Appellate Court, “[t]he overriding purpose
of the Illinois workers’ compensation scheme is to compensate an employee for lost earnings
resulting from a work-related disability.” Interstate Scaffolding, Inc. v. Workers’ Compensation
Comm’n, 385 Ill. App. 3d 1040, 1047, 896 N.E.2d 1132, 324 Ill. Dec. 913 (3d Dist. 2008). Removing
one’s self from the work force by violating company rules is not the same as losing earnings
from a work-related disability.
Two of the five justices dissented. Although agreeing with the majority in principle – that TTD
may be terminated when an employee is fired for violating company rules – the two dissenting
justices advocated that if the employee can establish that the medical restrictions resulting from
the work-related injury prevents him from securing employment at pre-injury work levels, TTD
benefits should be payable for the loss of earning capacity.
Following the decision and on motion of the petitioner, two of the justices made the appropriate
finding under Supreme Court Rule 315(a) that the case involved significant issues warranting
Supreme Court review.
3.
Supreme Court Analysis
The Supreme Court accepted the employee’s petition for leave to appeal and after extensive
briefing (including an amicus brief on behalf of the Association of Illinois Defense Counsel
authored by Heyl Royster), the Supreme Court held that as a matter of law an employer’s
obligation to pay TTD benefits to an injured employee does not cease because the employee
has been discharged, even for cause. When an injured employee has been discharged by his
employer, the determinative inquiry for deciding entitlement to TTD benefits remains whether
the petitioner’s condition has stabilized.
In reaching this conclusion, the Supreme Court cited section 8(b) of the Act, which states:
“weekly compensation . . . shall be paid . . . as long as the total temporary incapacity lasts.”
Interstate Scaffolding, Inc. v. Illinois Workers’ Compensation Comm’n, 236 Ill. 2d 132, 142,
923 N.E.2d 266, 337 Ill. Dec. 707 (2010). The court then noted that the Commission’s
determination of how long the petitioner was temporarily totally incapacitated was a question of
fact that could only be disturbed if it was against the manifest weight of the evidence. The
Supreme Court took issue with the fact that while the Appellate Court admitted there was
sufficient evidence that the petitioner had yet to reach MMI, it nonetheless failed to uphold the
Commission’s decision.
Practice Pointer #1: If you have a situation where the petitioner has been
terminated for a voluntary act of misconduct while working with restrictions,
consider whether an IME could be conducted to find the petitioner has reached
MMI.
Looking to the language of the Act, the court noted that there was no statutory language
providing that TTD benefits can be terminated, suspended, or denied when an employee is
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discharged for “volitional conduct.” Since the Act failed to specifically grant the Commission the
power to evaluate whether the discharge was the result of an employment decision, the
Commission lacked the power to make such a determination. Thus, the court held that the
Commission’s only focus in such cases must be whether the petitioner is at MMI or ready to reenter the work force.
Practice Pointer #2: If the petitioner is not at MMI but is capable of working,
consider performing a formal or informal job search to identify other jobs available
to the petitioner within the restrictions. If it can be shown that the petitioner was
capable of re-entering the work force, even if he is not at MMI, he would not be
entitled to TTD benefits.
According to the court, the Commission’s exclusive focus in determining whether an employee is
entitled to TTD is whether the petitioner’s condition has stabilized (reached MMI) or whether the
employee is able to show that he continues to be temporarily totally disabled as a result of his
work-related injury. Therefore, whenever a petitioner has not yet reached MMI and he remains
temporarily totally disabled as a result of his work-related injury, Interstate Scaffolding says he
will be entitled to TTD benefits, regardless of whether he has been terminated for violating
company rules or not.
4.
What Does Interstate Scaffolding Mean in Other TTD Termination
Settings?
The Supreme Court’s ruling makes it clear that the Act provides TTD benefits to an employee so
long as he is not at MMI or is temporarily totally disabled as a result of his work injury. Although
this has been the relevant standard for many years, the court’s strict interpretation of the Act
likely means that judicial exceptions will not be allowed and that absent a guiding provision of
the Act, the sole determinative issue is whether the employee has reached MMI. While it is very
possible that the decision may cause the Commission to be reluctant to terminate a petitioner’s
TTD benefits prior to MMI, there are still valid arguments for terminating TTD in various
situations that have not been specifically overruled by Interstate Scaffolding. Interstate
Scaffolding does not say that a petitioner is entitled to be paid TTD benefits ad infinitum.
Terminating TTD remains one of the most effective ways of bringing a case to rapid conclusion,
and thus grounds for terminating TTD should be carefully evaluated.
a)
Terminating
Restrictions
TTD
When
Providing
Employment
within
Employers frequently terminate TTD benefits pre-MMI by providing employees with temporary
employment within the physician’s restrictions while they continue to receive treatment and
heal. Such practices should not be affected because the thrust of Interstate Scaffolding centers
on how an employer can terminate TTD benefits when an employee has not reached MMI and
has not received a full release to return to work.
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b)
Terminating TTD When the Employee Refuses to Work Within
the Restrictions
Illinois law is well-settled that TTD benefits can be cut off if the employee refuses work falling
within the physical restrictions prescribed by his doctor. See, 820 ILCS 305/8(d); Hartlein v. Illinois
Power Co., 151 Ill. 2d 142, 166, 601 N.E.2d 720, 176 Ill. Dec. 22 (1992). Under this section of the
Act, employees who refuse to comply with an employer’s offer of light-duty work within the
physician’s restrictions should not be entitled to TTD. Gallentine v. Industrial Comm'n, 201 Ill.
App. 3d 880, 559 N.E.2d 526, 147 Ill. Dec. 353 (2d Dist. 1990). However, with the advent of
temporary partial disability, which entitles the employee to a temporary wage differential,
current law suggests that the employer may still be obligated to cover the partial TTD until the
petitioner reaches MMI.
c)
Terminating TTD Based on Employee Layoffs
Another scenario, although not specifically addressed by the court in Interstate, is whether an
employee is entitled to TTD benefits when the employee is laid off for reasons unrelated to the
injury by the employer prior to reaching MMI. There are cases that have held that the employee
is entitled to TTD benefits unless the employer could obtain employment for the employee
within the restrictions elsewhere. See, Whitney Productions, Inc. v. Industrial Comm’n, 274 Ill. App.
3d 28, 653 N.E.2d 965, 210 Ill. Dec. 770 (2d Dist. 1995).
However, a recent decision by the Illinois Workers' Compensation Commission reached a
contrary result. In Gonzalez v. ITT Industries, IL.W.C. 16303, 09 I.W.C.C. 1182, 2009 WL 5067488
(Nov. 9, 2009), the petitioner was not entitled to TTD after he was released with a light-duty
restriction when all employees had been laid off due to the economy. The Commission
concluded that the petitioner was not temporarily totally disabled because the release to lightduty work fundamentally meant that he was not totally disabled. Since the petitioner was not
placed at a disadvantage over the able-bodied employees, he was not entitled to TTD. In other
words, because all of the employees were laid off, the petitioner had not been treated any
differently than his co-workers. Finally, the Commission questioned whether the petitioner
needed restrictions because he testified that there had been a change in his condition since the
accident, even though his doctor eventually released him at MMI.
According to Gonzalez, when a petitioner is laid off, consideration must be given to whom is
affected by the layoff, the extent of the petitioner’s restrictions and whether it is possible to
show that the petitioner is at MMI. Gonzalez is likely to be appealed, and we will keep you
advised when the judiciary resolves the issue raised in that case.
In Residential Carpentry, Inc. v. Illinois Workers’ Compensation Comm’n, 389 Ill. App. 3d 975,
910 N.E.2d 109, 331 Ill. Dec. 36 (3d Dist. 2009), the petitioner was performing work as a
carpenter. On the date of the occurrence, the petitioner claims that he noticed a sharp pain in
his shoulder. The petitioner underwent conservative treatment, including injection and physical
therapy. The petitioner’s treating physician recommended surgery even though the petitioner
had slight improvement.
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The petitioner testified that the respondent refused to authorize the procedure. The petitioner
returned to work and then alleged an aggravation/injury. The petitioner was examined by a
treating physician and was placed on some work restrictions, which were honored by the
respondent.
Approximately one and one-half years later, the petitioner was laid off. The petitioner testified
that he unsuccessfully attempted to be rehired by the employer. He claimed that he attended
regular union meetings in an effort to secure employment. The petitioner testified that he had a
conversation with the respondent’s superintendent, who told him that they were “not busy” but
that there were “problems” with respect to the petitioner’s last job and that he would be better
off to seek employment elsewhere. The petitioner testified that he attempted to obtain a
position with 15 to 20 other contractors, and the petitioner did keep and introduced a written
log documenting his efforts in looking for work.
Medically, the petitioner continued under the care of his treating physician, who continued to
suggest that the petitioner undergo surgery. At trial, the employer presented testimony of the
safety director. The safety director testified that he did not discuss the petitioner’s restricted
duty request for work with the petitioner’s supervisor. The safety director testified that the
petitioner never contacted him with respect to employment, but at the same time the safety
director testified that he did not make decisions regarding hiring. The safety superintendent
testified that at the time of trial, there were some light-duty jobs available.
The arbitrator awarded the petitioner 28 weeks of TTD benefits and also ordered that the
respondent pay for reasonable related medical expenses and approve the surgical procedure
that was recommended by the treating physician. Penalties and attorneys’ fees were imposed
for refusal to approve that surgery. On the issue of temporary total disability, the Appellate
Court noted that to be entitled to TTD benefits, the petitioner must show not only that he did
not work but that he could not work. Archer Daniels Midland Co. v. Industrial Comm’n, 138 Ill. 2d
107, 561 N.E.2d 623, 149 Ill. Dec. 253 (1990). The Appellate Court stated that in this particular
case the dispute was not over whether the petitioner’s condition has stabilized; rather, the issue
“is whether the claimant’s condition renders him totally disabled.”
On this issue of whether or not the petitioner was totally disabled, the respondent pointed out
that the petitioner worked his regular job for 25 months before being laid off. The Appellate
Court noted that the petitioner’s treating physician did impose work restrictions on the
petitioner, which were honored, and the petitioner continued to work the final 17 months in a
capacity that was less than full work duty.
The Appellate Court then noted that because the petitioner was able to work in some capacity
despite his condition means that the petitioner was not “obviously unemployable,” so it stated
that the petitioner then had to establish that there was no employment available to a person in
his condition. This reasoning suggests that once it is shown that the petitioner is “not obviously
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unemployable,” the burden actually shifts to the petitioner to establish that there is no
employment available to him or her.
To this end, the Appellate Court noted that the petitioner did provide evidence of a diligent job
search. (He put into evidence his written job log and also testified that he remained in contact
with his union and, from time to time, employer to determine if work was available.)
In doing this, the Appellate Court noted that the petitioner “had fulfilled this burden,” and it was
for the respondent to show the petitioner was not otherwise employable during this period. In
reviewing the record, it noted that the respondent did not fulfill its burden. It did not show that
the petitioner was not otherwise employable during this period of time. It noted that merely
showing that the petitioner continued to work under medical restrictions did not establish that
the petitioner was “otherwise employable.”
This is significant because it suggests that even when the petitioner is not at MMI (the petitioner
was under restrictions and also had a surgical recommendation), it suggests that there is a
requirement on the petitioner to show that he is not “obviously unemployable;” and if he does
so, then the burden shifts to the employer. The Appellate Court next considered the petitioner’s
argument that the petitioner was laid off for economic reasons, but it concluded that given the
evidence, there was an “inference that the respondent was not being forthcoming when it told
the claimant it had no work for him.”
d)
Terminating TTD Where Employee Fails to Cooperate with
Medical Care or Rehabilitation Efforts
The Workers’ Compensation Act provides specific scenarios where an employer may terminate
TTD benefits. Under section 19(d), TTD benefits may be suspended or terminated if the
employee refuses to submit to medical, surgical, or hospital treatment essential to his recovery
or if the employee fails to cooperate in good faith with rehabilitation efforts. See, 820 ILCS
305/19(d); R.D. Masonry, Inc. v. Industrial Comm’n, 215 Ill. 2d 397, 830 N.E.2d 584, 294 Ill. Dec.
172 (2005); Hayden v. Industrial Comm’n, 214 Ill. App. 3d 749, 574 N.E.2d 99, 158 Ill. Dec. 305 (1st
Dist. 1991) (holding that TTD justifiably terminated by the employer when the injured employee
was unwilling to cooperate with vocational placement efforts).
A petitioner’s “unreasonable delay” in choosing to undergo surgery prescribed by his or her
treating physician can result in the denial of TTD benefits. Walker v. Industrial Comm’n, 345 Ill.
App. 3d 1084, 804 N.E.2d 135, 281 Ill. Dec. 509 (4th Dist. 2004).
e)
Terminating TTD Where the Employee Violates Rules Set Forth
in a Collective Bargaining Agreement or Policy Handbook
Interstate Scaffolding involved what might be termed a “tenuous” termination – one in which
there was not a violation of a clearly defined work rule. Had the employee violated a clearly
defined work rule applying to all employees, such as a rule prohibiting employee drug use or
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one imposed through a union agreement, it is possible that the Illinois Supreme Court might
have addressed the issue differently. We expect efforts to try to distinguish Interstate Scaffolding
when violations of well-defined rules results in termination of employment, and employers then
attempt to cut off TTD benefits.
II.
RECURRING TTD PATTERNS
A.
Petitioner Was Off Work and Had Not Yet Returned to Work Prior to the
Economic Layoff
In this situation, the petitioner may be owed TTD benefits regardless of the economic layoff
because the petitioner’s inability to work is due solely to the injury. From a defense standpoint,
our strategy should be to get an opinion that the petitioner is at MMI, either from the treating
doctor or through a section 12 IME. We also want to show that the petitioner had no restrictions
or can return to his/her usual and customary line of employment. If we can show this, then no
TTD benefits will be due and owing. However, we may be required to offer vocational
rehabilitation and maintenance benefits during the petitioner’s vocational rehabilitation. If we
are required to offer vocational rehabilitation, the goal is to get the petitioner back to work in
his/her usual and customary line of employment or get him/her back to work earning at or near
the prior earnings in their usual and customary line of employment.
B.
Petitioner Returned to Work with Restrictions (Perhaps Light Duty) and the
Employer Accommodated the Restrictions at a Lower Wage Rate, and the
Petitioner Is Laid Off
It can be argued the petitioner is only entitled to temporary partial disability benefits. The
petitioner returned to work and was paid for that work, albeit at a lower wage. The section 8(a)
TPD benefit paid represents the inability to work at the former level. If that individual is let go
because of an economic layoff, the employer may only have to continue to pay the TPD benefit
and not the full TTD rate. The petitioner, to the extent he/she was able to work, was in the same
position as the other non-injured workers. See, Gonzalez v. ITT Industries, 07 IL.W.C. 16303,
09 I.W.C.C. 1182, 2009 WL 5067488 (Nov. 9, 2009, Indust. Comm.).
C.
The Petitioner Returns to Work with Restrictions to His Former Job, Was
Not at MMI, the Employer Accommodated the Restrictions with No Wage
Loss, and the Petitioner Is Laid Off
A strong argument can be made for terminating all TTD benefits. Our defense should be to
show that the petitioner’s restrictions did not interfere with his job duties. This will require
testimony from the employer that the employee did return to his usual and customary line of
employment. We should argue that the petitioner was able to perform his usual and customary
line of employment. We should again attempt to obtain an opinion that the petitioner is at MMI.
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We should also introduce evidence through the employer that all employees, even those
performing the petitioner’s old job, were laid off. We want to be able to show that the economy
was the sole reason for the petitioner’s layoff and not the petitioner’s injury.
D.
Petitioner Returned to Work with Restrictions, Was Not at MMI, and Was
Able to Perform His Former Job Because the Restrictions Do Not Interfere
with Job Performance
The defense in this situation should be raised that the petitioner is in no different position than
the other non-injured employees who were also let go and is therefore not owed TTD. We again
should obtain testimony from the employer that the petitioner was able to perform his usual
and customary line of employment despite having the restrictions. We should also attempt to
obtain an opinion that the petitioner is at MMI.
E.
Petitioner Is at MMI without Restrictions, Returns to Former Employment,
Then Laid Off
In this situation, no TTD benefits are due and owing because it is clear that the sole reason for
the petitioner’s layoff was the economy. The petitioner’s attorney will more than likely send the
petitioner back to the doctor to get a note indicating the petitioner could not return to his
former job or is not at MMI. If this does happen, we would need to dispute this with an opinion
that the petitioner is at MMI and can return to work without restrictions.
F.
Petitioner Is at MMI with Restrictions, Returns to Former Employment, but
No Accommodation is Necessary, and Is Then Laid Off
No TTD benefits are due and owing in this situation because petitioner is at MMI. We must
again prove that the petitioner is able to perform his usual and customary line of employment
even with the restrictions. We should also argue that the petitioner is not entitled to
maintenance or vocational rehabilitation because he/she was able to return to his/her former
employment with no accommodation.
G.
Petitioner Is at MMI with Restrictions, Restrictions Interfere with Regular
Job Duties, Employer Accommodated the Restrictions, and Then Petitioner
Is Laid Off
Since the petitioner is at MMI, no TTD benefits are due and owing. However, since the
restrictions interfere with the petitioner’s regular job duties, it is possible that we would be
responsible for vocational rehabilitation and maintenance benefits. If this is the case, the key will
be to get the petitioner back to work at or near their prior earnings in order to avoid a section
8(d)1 wage differential. The employer will also want to show that the petitioner was able to
perform his/her usual and customary line of employment.
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H.
Petitioner Is at MMI with Restrictions, Is Laid Off, then Obtains Same
Employment Elsewhere at a Lower Wage
In this situation, the petitioner will likely push for a section 8(d)1 wage differential. Our defense
should be that the petitioner has returned to work in his usual and customary line of
employment even with his restrictions, so even if the petitioner is earning less, he is unable to
prove that he is entitled to a section 8(d)1 wage differential. We will want to develop as broad of
a definition of the petitioner’s usual and customary line of employment as possible to include
his current employment.
I.
Petitioner Is Not at MMI, Obtains Employment Elsewhere After Being Laid
Off, Subsequent Employer Accommodates Restrictions at a Lower Wage
Petitioner will argue that she is entitled to temporary partial disability benefits since she is still
on light duty. We will want to show that the petitioner is at MMI, and her condition has
stabilized to avoid temporary partial disability benefits. We will also want to show that the
petitioner’s current job falls within her usual and customary line of employment to avoid a
section 8(d)1 wage differential. We may also want to wait it out and see if the petitioner’s wages
increase in order to reduce a potential wage differential.
J.
Petitioner Is Not at MMI Because She Delays in Arranging Future
Surgery/Treatment, Is Working Light Duty at the Same or Reduced Rate,
and Is Then Laid Off
In this situation, a strong argument can be made to deny TTD or temporary partial disability
benefits. According to section 19(d) of the Act, if a petitioner refuses to submit to medical,
surgical, or hospital treatment as is reasonably essential to promote recovery, the Commission
may reduce or suspend the compensation of any such injured employee. We should therefore
argue that the petitioner’s failure to continue with treatment is the reason she is not at MMI and
is not able to return to her former line of employment. See, Walker v. Industrial Comm’n, 345 Ill.
App. 3d 1084, 804 N.E.2d 135, 281 Ill. Dec. 509 (4th Dist. 2004).
K.
Petitioner Not at MMI, Offered Modified-Duty Work and Refuses, and Is
Then Laid Off
No TTD benefits should be due and owing since the petitioner refused to accept a bona fide job
offer. The Appellate Court has made clear that if a petitioner does not take a bona fide job offer,
benefits will be denied. City of Springfield v. Industrial Comm’n, 216 Ill. App. 3d 1027, 576 N.E.2d
568, 159 Ill. Dec. 899 (4th Dist. 1991). If the petitioner does not accept a bona fide job offer, TTD
benefits should be terminated if the employer is going to accommodate the petitioner’s
modified-duty restrictions.
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III.
LIMITING TTD EXPOSURE DURING LAYOFFS
It should be argued that an employee should not receive TTD benefits (or even wage differential
benefits) where the cause of his inability to work is due solely to the economic conditions and
not due in any way to his restrictions or inability to find work. The defense should be raised that
the petitioner’s medical restrictions are not the reason why the petitioner is not currently
working. Additionally, it should be argued that the petitioner is not currently temporarily and
totally restricted from work. If the injured worker would not be hired regardless of his physical
condition, but rather due to economic conditions, the worker should not be able to receive TTD
benefits.
It is important to note that if the petitioner’s disability does not impair their ability to find other
work, then petitioner is in no worse position than their coworkers who were also laid off for
economic reasons. By focusing on whether the petitioner is in the same position as their
coworkers who were laid off, this might let us skirt the idea that a petitioner’s ability to look for
work is not a factor in the TTD analysis. In the end, if a petitioner cannot find work because
economic conditions are tight, then the ultimate burden will default to the employer, and the
employer will be required to find work or show that work is available in the same manner as one
does in a permanent total disability situation. This might fit into the argument that there must
be a showing, regardless of whose burden, that the inability to work results from the disability.
The approach to these claims should also be to aggressively pursue a section 12 IME (and
perhaps a Functional Capacity Assessment) with the goal of minimizing the petitioner’s
restrictions and to actively seek to find them alternative employment. The defense of these
claims will be fact oriented and will require that (a) the restrictions are not as severe as claimed,
and (b) the restrictions did not interfere with performance of petitioner’s former job, and
therefore the petitioner is not temporarily and “totally” disabled.
IV.
ADDITIONAL TTD ISSUES
A.
TTD and Illegal Aliens
The Illinois Workers’ Compensation Act expressly includes aliens in its definition of employee.
However, it is unclear whether individuals who are in the United States “illegally” are entitled to
benefits under the Act. In a recent case, when a petitioner was unable to return to work in a
light-duty capacity solely due to her illegal immigration status, no TTD benefits were owed by
the employer. Gomez v. Illinois Sportservice, 03 IL.W.C. 19746, 07 I.W.C.C. 0798, 2007 WL 2152828
(2007).
In Gomez, after a work-related injury in July of 2003, the petitioner was restricted to sedentary,
then light duty. The employer could not accommodate the restriction and paid the petitioner
TTD benefits. When the employer found out that the petitioner had used a false Social Security
number at the time of hire, it suspended TTD benefits. At arbitration, the employee’s human
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resource manager testified that the employer could accommodate the light-duty restriction but
refused to offer the work because it learned that petitioner was not a U.S. citizen. The arbitrator
found that the petitioner could not return to work “solely due to her illegal immigration status”
and denied further TTD benefits. The arbitrator did order the employer to pay petitioner’s
reasonable and necessary medical expenses. On review, the Commission affirmed the
arbitrator’s decision.
In Miezio v. Z-Wawel Construction, 00 I.I.C. 0341, 98 IL.W.C. 16088, 2000 WL 33418770 (2000), the
petitioner was released to work with restrictions following a work-related injury, but the
employer could not accommodate the restrictions. The employer instituted vocational
rehabilitation benefits and paid the petitioner TTD until it discovered that the petitioner was not
a U.S. citizen. At arbitration, the arbitrator found that the petitioner was not entitled to further
TTD benefits because the petitioner was unable to work solely due to his citizenship status. On
review, the Commission upheld the decision to deny further TTD benefits. However, the
arbitrator found, and the Commission agreed, that the petitioner was entitled to a percentage of
loss of the person-as-a-whole. The Commission found that the petitioner was not entitled to
wage differential or permanent total disability benefits in part because he was not legally able to
return to work in his preinjury capacity. The Commission found it unnecessary to decide whether
his citizenship status alone precluded a wage-differential award.
TTD benefits may be awarded to undocumented aliens in Illinois. An award of such benefits has
been held not to be preempted by federal immigration law. See, Economy Packing Co. v. Illinois
Workers’ Compensation Comm’n, 387 Ill. App. 3d 283, 901 N.E.2d 915, 327 Ill. Dec. 182 (1st Dist.
2008).
B.
TTD and Failure to Attend IME
If an employer complies with the requirements of section 12 in arranging an IME, a petitioner
must attend the scheduled examination. The employer must pay the appropriate travel expenses
prior to the scheduled examination and must also schedule the exam at a reasonably convenient
time and place. Refusal to attend the exam does allow the employer the right to suspend the
payment of temporary total disability benefits. However, those benefits will need to be
reinstated once the petitioner does attend the examination. It must also be clear that the
petitioner refused to attend an exam. The petitioner will no doubt claim that he/she was unable
to attend the exam because he/she could not obtain travel or because of some other issue. The
employer should argue that the petitioner simply refused to attend the IME in order for the
employee to suspend temporary total disability benefits. See, Anders v. Industrial Comm’n, 332
Ill. App. 3d 501, 773 N.E.2d 746, 266 Ill. Dec. 11 (4th Dist. 2002).
C.
TTD and Unemployment Compensation
In Illinois, a petitioner can collect both temporary total disability benefits and unemployment
compensation at the same time. The Illinois Supreme Court addressed this issue in Crow’s Hybrid
Corn Co. v. Industrial Comm’n, 72 Ill. 2d 168, 380 N.E.2d 777, 20 Ill. Dec. 568 (1978). In Crow’s
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Hybrid Corn, the Supreme Court held that the unemployment compensation statute and the
workers’ compensation statute were not mutually exclusive and that the receipt of temporary
total disability is not inconsistent with the receipt of unemployment benefits for the same
period. The court also noted that the unemployment compensation statute states a petitioner is
not eligible for unemployment compensation or should receive reduced benefits if the
petitioner is receiving remuneration under the workers’ compensation statute and states that
once disability benefits are received, either the unemployment compensation should be reduced
or the unemployment compensation fund should be reimbursed. To give the employer credit for
the unemployment compensation payments suggests the unemployment compensation fund
should be liable for that period of disability for which the petitioner receives unemployment
benefits, but is the disability attributable to his employment?
The Illinois Workers’ Compensation Commission came to a different conclusion. In Herrera v.
Cabrini Retreat Center, Inc., 06 IL.W.C. 5742, 08 I.W.C.C. 0317, 2008 WL 1794742 (2008), the
Commission held that the respondent was eligible for an offset of unemployment compensation
earnings against temporary total disability benefits pursuant to section 8(j) of the Workers’
Compensation Act. Section 8(j) of the Act contains broader language concerning credits due the
employer than that of the unemployment compensation statute and does not specifically
address when a petitioner receives unemployment compensation. Why the Commission chose
to give a credit to the employer for unemployment benefits rather than the unemployment
compensation fund a credit for the TTD payments is not clear. Until the courts in Illinois consider
both statutes and decide how they should interact with each other, employers should always
seek a credit for the amounts of unemployment compensation received by the petitioner.
D.
TTD and Incarceration
The issue of whether or not TTD benefits should be suspended due to incarceration has not
been directly addressed in Illinois. In a recent Commission decision, Mills v. AAA Chicago
Cartage, Inc., 03 IL.W.C. 023408, 08 I.W.C.C. 0079, 2008 WL 458718 (2008), the petitioner agreed
not to collect TTD benefits during the period in which he was incarcerated due to a violation of
his probation. The Commission found that the employer was entitled to a credit for the benefits
it paid to the petitioner during that time frame. However, neither the arbitrator nor the
Commission elaborated as to why this was agreed upon and whether this creates any
implications for future scenarios. It should be argued that the petitioner is unable to work due to
his/her affirmative act of breaking the law or committing a crime, and therefore TTD benefits can
be suspended.
E.
TTD and Retirement
If the petitioner was receiving TTD benefits and retires, in order to terminate TTD benefits, the
key will be to show that the petitioner could have worked but chose not to when the petitioner
retired. In City of Granite City v. Industrial Comm’n, 279 Ill. App. 3d 1087, 666 N.E.2d 827, 217 Ill.
Dec. 158 (5th Dist. 1996), the petitioner suffered a knee injury while working as a police officer.
Following surgery, the petitioner returned to a light-duty position. He worked intermittently for
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several months until he took disability retirement. The petitioner sought TTD benefits following
his retirement. The Illinois Workers’ Compensation Commission denied this request, finding that
the petitioner voluntarily left his light-duty job and removed himself from the work force in
order to collect a pension. The Appellate Court affirmed the Commission’s decision and noted
that the petitioner did not present any evidence demonstrating that his injury had not stabilized,
that he had not been released for light-duty work, or that he could not perform light-duty work.
However, in Land and Lakes Co. v. Industrial Comm’n, 359 Ill. App. 3d 582, 834 N.E.2d 583, 296 Ill.
Dec. 26 (2d Dist. 2005), the Appellate Court noted that there was competent evidence that the
petitioner was unable to work and that he retired not by choice but because he needed income.
The court distinguished Land and Lakes based on the fact that the petitioner in Land and Lakes
could have worked, but instead chose not to work.
In order to terminate TTD benefits when the petitioner retires, it must be shown that the
petitioner could have worked in some capacity but chose not to when the petitioner retired.
F.
Occasional Wages and TTD Liability
The earning of occasional wages does not necessarily preclude temporary total disability
benefits. When a petitioner’s medical condition has not stabilized and treatment continues, work
as a bus driver for a different employer averaging 3 hours per day, 10 to 15 hours per week, was
held to be “occasional” rather than “continuous” work and did not support a denial of TTD. See,
Mechanical Devices v. Industrial Comm’n, 344 Ill. App. 3d 752, 800 N.E.2d 819, 279 Ill. Dec. 531
(4th Dist. 2003).
G.
TTD Liability and Social Security Benefits
In Schmidgall v. Industrial Comm'n, 268 Ill. App. 3d 845, 644 N.E.2d 1206, 206 Ill. Dec. 153 (4th
Dist. 1994), discussed with approval in the Interstate Scaffolding decision, the petitioner had not
been released by his physicians to return to work and had elected to receive Social Security
disability benefits. The Commission, however, denied his claim for TTD benefits finding that he
had withdrawn himself from the work force since he was receiving Social Security pension
benefits. The Appellate Court reversed the Commission’s decision, noting that the petitioner was
not receiving Social Security benefits because he had left the work force, but rather because he
had not been released by his doctor and was not physically capable of working at that time.
Applying this analysis more generally, it appears that when an employee has not yet reached
MMI and a physician has not released a petitioner to return to work with temporary restrictions,
the employee is entitled to TTD benefits. Thus, the result in Schmidgall appears consistent with
Interstate Scaffolding.
H.
TTD and Unsanitary or Injurious Practices
A suspension of benefits pursuant to section 19(d) is appropriate only after a petition has been
properly filed by the employer and an order for suspension has been issued by the Commission.
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Evidence did support a finding that the petitioner was actively retarding his medical recovery in
Gallego v. Industrial Comm’n, 168 Ill. App. 3d 259, 522 N.E.2d 692, 119 Ill. Dec. 30 (1st Dist. 1988)
(finding that the petitioner was binding his hand in a deliberate attempt to impair circulation
and prolong recovery).
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Kevin J. Luther
- Partner
Kevin has spent his entire legal career at Heyl Royster,
beginning in 1984 in the Peoria office. He has been in
the Rockford office since it opened in 1985. Kevin is
currently in charge of the firm's workers'
compensation practice group.


Kevin concentrates his practice in the areas of
workers' compensation, employment law, and
employer liability.

He supervises the workers' compensation,
employment law, and employer liability practice
groups in the Rockford office. He has represented
numerous employers before the Illinois Human Rights
Commission and has arbitrated hundreds of workers'
compensation claims. He has also tried numerous
liability cases to jury verdict.


"Economic Disability and Earning Capacity: A
Historical Analysis for Wage Differential
Claims," Illinois Defense Counsel Quarterly
(2006)
"The Normal Daily Activity Exception to
Workers' Compensation Claims," Illinois
Defense Counsel Quarterly (2004)
"The Age Discrimination in Employment Act: A
Seventh Circuit Perspective," Illinois Defense
Counsel Quarterly (1998)
"The Impact of Federal Legislation on the
Employer/Employee Relationship in Illinois,"
Illinois Defense Counsel Quarterly (1996)
"An Overview of Repetitive Trauma Claims,"
Illinois Bar Journal (1992)
Professional Recognition
 Martindale-Hubbell AV rated
 Selected as a Leading Lawyer in Illinois. Only
five percent of lawyers in the state are named
as Leading Lawyers.
 Named to the 2009 Illinois Super Lawyers list.
The Super Lawyers selection process is based
on peer recognition and professional
achievement. Only five percent of the lawyers
in each state earn this designation.
Kevin has co-authored a book with Bruce Bonds of the
firm's Urbana office entitled Illinois Workers'
Compensation Law, 2009-2010 Edition, which was
recently published by West.* The book provides a
comprehensive, up-to-date assessment of workers'
compensation law in Illinois. He also is the
contributing editor of the Workers' Compensation
Report for the Illinois Defense Counsel Quarterly. Kevin
is a frequent speaker to industry and legal
professional groups.
Professional Associations
 Winnebago County Bar Association
 Illinois State Bar Association
 State Bar of Wisconsin
 American Bar Association
 Illinois Association of Defense Trial Counsel
(Board of Directors)
Kevin is a member of the Winnebago County Bar
Association in its workers' compensation and trial
sections. He is a member of the State Bar of
Wisconsin, Illinois State Bar Association, and the
American Bar Association, and has actively
participated in sections relevant to his practice areas.
He is a member of the Illinois Association of Defense
Trial Counsel (Board of Directors).
Court Admissions
 State Courts of Illinois and Wisconsin
 United States District Court, Northern and
Central Districts of Illinois
 United States Court of Appeals, Seventh Circuit
Significant Cases
 Arlene Bernardoni v. Huntsman Chemical Corp.,
Applied Frye principle to Illinois workers'
compensation in the defense of an
occupational disease/exposure claim.
 Richard Urbanski v. Deichmueller Construction
Co., Defined jurisdictional issue in workers'
compensation review.
Education
 Juris Doctor, Washington University School of
Law, 1984
 Bachelor of Arts-Economics and Mathematics
(Summa Cum Laude), Blackburn University,
1981
Publications
 Illinois Workers’ Compensation Law, 2009-2010
ed. (Vol. 27, Illinois Practice Series), published
by West (2009)*
* For more information, visit the West website at:
http://west.thomson.com/productdetail/159286/40843
543/productdetail.aspx
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Learn more about our speakers at www.heylroyster.com