WCLA MCLE Interstate Scaffolding: Three Years Later Wednesday November 7, :00 pm to 1:00 pm James R. Thompson Center, Chicago, IL 1 Hour General MCLE Credit Catherine Mafee Levine, Wiedner & McAuliffe Stephen Smalling, Capron & Avgerinos

Interstate Scaffolding v. IWCC 236 Ill2d 132 (2010) In this appeal we are asked to consider whether an employer's obligation to pay temporary total disability (TTD) workers' compensation benefits to an employee who was injured in the course of his employment ceases when the employer terminates the employee for conduct unrelated to the injury. For reasons that follow, we hold that when an employee who is entitled to receive workers' compensation benefits as a result of a work-related injury is later terminated for conduct unrelated to the injury, the employer's obligation to pay TTD workers' compensation benefits continues until the employee's medical condition has stabilized and he has reached maximum medical improvement. Looking to the Act, we find that no reasonable construction of its provisions supports a finding that TTD benefits may be denied an employee who remains injured, yet has been discharged by his employer for "volitional conduct" unrelated to his injury. A thorough examination of the Act reveals that it contains no provision for the denial, suspension, or termination of TTD benefits as a result of an employee's discharge by his employer. Nor does the Act condition TTD benefits on whether there has been "cause" for the employee's dismissal. Such an inquiry is foreign to the Illinois workers' compensation system. When an injured employee has been discharged by his employer, the determinative inquiry for deciding entitlement to TTD benefits remains, as always, whether the claimant's condition has stabilized. If the injured employee is able to show that he continues to be temporarily totally disabled as a result of his work-related injury, the employee is entitled to TTD benefits.

Otto Baum Company 2011 IL App (4 th ) WC We agree with Otto that a claimant's improper refusal of modified work may justify the termination of his TTD benefits. However, as indicated, the Commission has discretion to terminate or suspend benefits in response to a claimant's refusal to accept work within his restrictions. Here, the Commission considered the evidence of the claimant's refusal to work in September 2008 and awarded him TTD benefits for only the period preceding and following his refusal. We must infer from the Commission's decision that the Commission considered, and rejected, the possibility that the claimant's refusal was so unjustified as to warrant termination of his TTD benefits, yet determined that the claimant's refusal justified a suspension of his benefits for the time that he refused work. That approach has sufficient support in the record. Although Otto presented evidence that it stood ready to accommodate the claimant and that he nonetheless refused work in September, the Commission was also presented with evidence that the claimant eventually submitted himself for work in December 2008 and that Otto refused to accommodate the claimant at that time. Given that evidence, we cannot say that it was clearly apparent that the claimant was not entitled to the TTD benefits for the period from December 10, 2008, through February 18, 2009, nor can we say that the Commission abused its discretion in suspending his benefits rather than terminating his benefits due to his failure to accept work in September 2008.

Hedl v. IWCC No WC (2012) (Rule 23) Here, the Commission found that Titan stood ready to provide restricted-duty work but that the claimant requested a layoff for reasons unrelated to his injury. Accordingly, the Commission's decision was based on a finding that the claimant had forgone available work within his physical restrictions, a finding that comports with the supreme court's decision in Interstate Scaffolding. We therefore reject the claimant's first challenge to the Commission's TTD finding. Interstate Scaffolding

Chicago Bridge & Iron v. IWCC N WC (2012) (Rule 23) On appeal, (Respondent) Chicago asserts that the Commission erred in finding that the claimant had not retired by February 22, 2007, and that he had not removed himself from the workforce thereafter. It argues, therefore, that the Commission's award of TTD and maintenance benefits and its order for a vocational assessment of the claimant are against the manifest weight of he evidence. We disagree. Normally, benefits under the Act may be suspended or terminated if an employee refuses work falling within the physical restrictions prescribed by his doctor. Interstate Scaffolding. Here, the Commission found as a matter of fact that the claimant was willing to work both for the first two weeks of the Darien job, from February 23, 2007, through March 8, 2007, and at a job Lieske offered him in This represents a finding of fact by the Commission, whose function it is to decide questions of fact, judge the credibility of witnesses and resolve conflicting evidence.Interstate Scaffolding

Burgensons v. IWCC No WC(2012) (Rule 23) Whether the Commission erred in awarding TTD benefits from October 29, 2007, through November 7, The employer next disputes the claimant's entitlement to TTD benefits from October 29, 2007, through November 7, Whether a claimant is entitled to TTD benefits is a question of fact for the Commission which will not be overturned on appeal unless it is against the manifest weight of the evidence. Interstate Scaffolding. Here, the Commission determined that the claimant had not yet reached MMI during the period in question, that the claimant's work restrictions during that period of time were of a completely sedentary nature, and that the employer had failed to offer a light-duty job within the claimant's restrictions. The employer points out that the report of Dr. Lubenow supported a finding that the claimant had reached MMI. However, other medical evidence supported a conclusion that the claimant had not yet reached MMI during the time in question. As to whether the employer offered the claimant a job within his physical restrictions, the record is subject to disputed interpretations. Although a meeting took place on November 12, 2007, at which the claimant's job restrictions and a possible return to work within those restrictions was discussed, nothing in the record indicates that the employer followed up the meeting with an actual job offer within the claimant's restrictions. Given the record, we cannot say that the Commission's determinations as to TTD benefits was against the manifest weight of the evidence.Interstate Scaffolding.

Commission Decisions Maria Lopez v. AGI Media, 11 IWCC 0576: TTD awarded; no MMI; Petitioner could not do light duty because of late discovery of undocumented status Manuel Rosas v. GM Warehouse, 12 IWCC 419: TTD awarded; no MMI; Petitioner fired because undocumented Larry McCarthy v. Navistar, 12 IWCC 507: TTD denied; MMI?; Petitioner never returned to light duty and then retired Juan Mejia v. Transport Production, 12 IWCC 534: TTD awarded; no MMI; Petitioner refused to give urine sample Mark Cesario v. Oak Lawn FD, 12 IWCC 601: TTD denied; no MMI, but Petitioner refused light duty work after 45 day period in CBA

Walter Matusczak v. Wal-Mart 10 WC DA year old stocker injured neck when shelf fell on him Treatment: Concentra, Dr. Lorenz, pain management, RX fusion C5-6, continued light duty IME Dr. Mather: simple contusion, no SX, MMI, no restrictions Worked light duty? until Fired for stealing cigarettes from work

Walter Matusczak v. Wal-Mart 10 WC Arbitration Decision 19(b)/8(a) tried Decision Causation awarded based on Dr. Lorenz’ opinion Medical awarded on basis of causation, including prospective TTD awarded from date of firing to date of hearing “At the time of his termination, Petitioner was subject to light duty restrictions which were being accommodated by the Respondent.” Citing Interstate Scaffolding: “In the present case, the evidence shows that Petitioner has remained under the same light duty restrictions imposed at the time of the termination. It also appears that the petitioner’s condition has yet to stabilize and/or reach maximum medical improvement.”

Walter Matusczak v. Wal-Mart 12 IWCC 1079 Commission Decision Unanimous decision dated “In awarding TTD benefits, the Arbitrator relied on Interstate Scaffolding.” Respondent contends that stealing on multiple occasions “is equivalent to his refusing light duty work…The Commission agrees with Respondent’s position.” “We do not believe that the Interstate Scaffolding decision stands for the proposition that an injured employee, whose employment has been terminated, has an unqualified or absolute right to TTD so long as the employee’s condition has not stabilized and the employee is under light duty restrictions.” “The Commission finds that Petitioner’s repeated theft of cigarettes amounts to a refusal to work in the light duty position that Respondent had been providing for over a year…Under the circumstances of this case we find that Petitioner refused Respondent’s ongoing offer of work within his physical restrictions.” TTD AWARD VACATED

Can These Statements Be Reconciled? When an injured employee has been discharged by his employer, the determinative inquiry for deciding entitlement to TTD benefits remains, as always, whether the claimant's condition has stabilized. If the injured employee is able to show that he continues to be temporarily totally disabled as a result of his work- related injury, the employee is entitled to TTD benefits. We do not believe … that an injured employee, whose employment has been terminated, has an unqualified or absolute right to TTD so long as the employee’s condition has not stabilized and the employee is under light duty restrictions.