Does the Duty to Pay TTD Ever End in This State?
Thursday, May 28, 2009 | 0
By Eugene F. Keefe and Shawn R. Biery
Synopsis: Does the duty to pay TTD ever end in this state? In this claim, when light duty ended, Petitioner remained entitled to TTD for the full period of layoff by showing a lack of employability through a job search. Further, the award of penalties & fees were not against manifest weight even when portion of recommended surgery which was denied was unrelated.
Editor's comment:
While the duty to pay TTD when restricted from full work and after a job search shows lack of employability is in line with prior Illinois holdings, the denial of partially unrelated care resulting in penalties/fees appears to open a door to even more hardship for Illinois employers who will be penalized at times of what appears to be "true controversy" which should provide a defense to penalties. On a final note, the Court did note penalties and fees under the WC Act were sufficient to protect the injured employee's interests and denied Supreme Court Rule 375 sanctions.In Residential Carpentry v. The Workers' Compensation Commission (No. 3-08-0122WC March 27, 2009), Plaintiff Tibbitts filed an Application for Adjustment of Claim alleging a work-related injury to his shoulder. The Arbitrator found Claimant credible and awarded him 28 weeks temporary total disability (TTD), existing and prospective medical expenses, as well as penalties and attorney fees. The Workers' Compensation Commission adopted that decision, and the Will County Circuit Court confirmed its decision. Respondent Residential Carpentry appealed the TTD and penalties and fees.
The Appellate Court also noted claimant's request for sanctions under Supreme Court Rule 375 (155 Ill. 2d R. 375) to "hopefully minimize the need for injured workers to have to endure this process to this extent in the future." The Court noted imposition of sanctions under this rule is a matter "left strictly to our discretion" and further noted they believed the fees and penalties imposed by the Commission adequately protect that interest and rejected claimant's request.
It was noted Petitioner worked light duty for a period of approximately 17 months prior to layoff and only requested TTD after layoff resulted in his claimed inability to locate employment. The layoff was for purely economic reasons and Respondent argued this fact should result in denial of TTD.
From the decision, it appears TTD would more than likely have been denied except for the fact of a job search which met the standard of the Archer Daniels Midland case in which it was noted evidence of a diligent search for employment was sufficient to show claimant was not employable resulting in TTD being owed. This job search including search logs and ongoing union contacts to locate work shifted the burden to Respondent to show work would have been available and it does not appear any evidence was presented on behalf of Respondent to show there may have been work available.
In relation to the appeal of penalties and fees, Respondent asserted its refusal was reasonable under the circumstances because a portion of the condition of claimant's shoulder was not related to his employment and Respondent did authorize the repair of claimant's rotator cuff, and it only denied authorization for the clavicle resection portion of the surgery which was in dispute. The Court noted the Arbitrator correctly observed it would not be reasonable to have a doctor operate on one part of claimant's shoulder, but not on another part that could be addressed during the same procedure. In essence, it was not reasonable for Respondent to attempt to subdivide a region of claimant's body in a manner contrary to how it would be treated in the normal course of medical practice. The Court refused to state the Commission's decisions to award claimant fees and penalties were against the manifest weight of the evidence due to testimony of the treating physician relating the entire condition.
This case is another example of the proposition confirming TTD will be due if work is shown to be unavailable to an injured worker. The more disturbing issue raised is the systemic penalty at every level to a Respondent who - while agreeing to pay for the portion of a procedure deemed related - refused full authorization based upon a medical dispute based upon a medical opinion from Dr. Betzelos who denied relation of a portion of the condition and was penalized for their decision to rely on a medical opinion providing the basis for the dispute.
While we are sure most Petitioner attorneys will trot out the age old "IME doctor gets paid for his opinion" adage to pooh-pooh the legitimacy of the dispute, it should be noted that the treating physician also gets paid - generally at a higher rate of WC claims and also always has an "interest" in obtaining approval for expensive procedures. If Respondents are to now try to determine whether they will be penalized for relying on an expert, the employees of the state can start house hunting in our sister states now because the only thing slowing down the exodus out of Illinois will be the annual road construction which has started to slow the travel.
Synopsis: Another reform that Illinois should enact but that we feel has a wildly slim chance of passage - public financing of judicial elections.
Editor's comment:
Why would our liberal Plaintiff bar give up the dominance they have with the judiciary? We point out there is no group in the Illinois body politic that has more money or a bigger stake in controlling the judiciary. Many Plaintiff firms donate literally hundreds of thousands of dollars to get judges favorable to their needs and desires. We assure you they will work quietly to avoid this reform as being "bad for their business." What drives the defense industry nuts are the massive egos of the Plaintiff bar who strut around like they are geniuses when their rulings are bought and paid for long before oral argument takes place.Everyone should note it is perfectly legal in Illinois for a law firm to donate $1 million to a judge's campaign. If the judge doesn't use the money in their campaign, he/she can cash the check, pay the income taxes and spend the money. If that isn't legalized graft, we are not sure what would be. It is inconceivable to think such a judge could be fair and impartial in litigation involving such a lawyer but we assure you that same concept happens every day in this state. It is not considered a conflict of interest for a lawyer to appear before a judge to whom they have donated thousands of dollars - they don't even have to disclose such contributions to the other side!!
Please remember in many types of litigation, judges approve the legal fees earned by Plaintiff lawyers. It is comical to think such judges aren't influenced by campaign monies. Please recall the judge in tiny Madison County, Ill., who provided one of his "favorite" plaintiff lawyers with a legal fee of $1.1 billion dollars or what we felt would have been an hourly rate of over $100,000 per hour. The interest on the appeal bond on that judgment and attorney fee bought the county a brand-new courthouse and lots of other fun stuff no other Illinois county has.
An amendment to Senate Bill 352 is available for review online at http://www.reformillinoisnow.org/DB/IRC - Campaign Finance - Judicial Public Financing.pdf. The funding proposed is to come from assessing each Illinois lawyer a $50 surcharge on his or her ARDC registration fees and a $1 fee on litigants who file civil actions. The only problem is whether Illinoisans have the common sense and intelligence to push for its passage.
We vote for anything that creates an honest and independent judiciary in this way-too-crooked state. Please send your thoughts and comments.
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Keefe and Biery are attorneys at the Chicago law firm of Keefe, Campbell & Associates.
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