What the....? Oh, it's Illinois

Monday, February 1, 2010 | 0

By Eugene Keefe

Our Supreme Court issues new unanimous ruling we respectfully feel is a conundrum, wrapped in an enigma, surrounded by a puzzle; we feel there is no question this is a paradoxical decision on a major workers’ compensation issue Illinois employers may be reluctant to follow.
 
From the perspective of Illinois employers, we don’t consider this just a problematic ruling from this Court; we consider it one of the most difficult and anti-business decisions in recent years to ingest as attorneys and counselors for Illinois employers; especially employers that have problematic employees. We are unsure why the Supreme Court chose to take on this case, as it is our impression our colleagues on the other side of the bar previously took no particular exception to termination of the worker and suspension of TTD when their clients engaged in such shenanigans. You may note the Supreme and Appellate Court agreed it was a matter of first impression or the first reported case on the issue—the reason may have been both sides supported the prior concept and didn’t want such issues litigated. We feel this ruling may be one of those “no bad deed goes unrewarded” outcomes.
 
In Interstate Scaffolding, Inc. v. Illinois Workers’ Compensation Commission, (Docket No. 107852 Jan. 22, 2010), our Supreme Court considered an appeal where claimant had an undisputed back problem and was working on light duty. He spray-painted graffiti on the employer’s shelving or equipment and was fired for it. He then made a claim for TTD after being fired. The Arbitrator denied it, the Commission awarded it and the Appellate Court issued a solid ruling confirming claimant wasn’t entitled to workers’ comp benefits after being fired for spraying graffiti and not due to his disability or medical care or anything related to the injury.
 
Difficult message we keep seeing sent from the highest court to the lower court that usually and capably handles WC appeals—don’t do anything that isn’t pro-labor.
 
Well, the Supreme Court took the case and reversed the Appellate Court, Workers’ Compensation Division and awarded claimant about $5,000 in TTD. The first aspect of this ruling that we consider poorly reasoned and anti-business is the message sent back to the Appellate Court, Workers’ Compensation Division. There has been one defense ruling in about a decade from the Appellate Court, Workers’ Compensation Division; Airborne Express which took out non-mandatory overtime from the average weekly wage. Every other moderate or slightly pro-business ruling by our Appellate Court, Workers’ Comp Division has been accepted for appeal and then reversed by our Illinois Supreme to supplant reasonable or moderate rulings with concepts that wildly favor Illinois labor. In this continuing rotten economy with double-digit unemployment, we would prefer to see greater consideration for the interests of Illinois business to both lure new employers and jobs to our state along with keeping existing employers within our borders. This ruling sends the wrong message.
 
Don’t the members of our highest court understand Illinois employers don’t want to have to pay benefits when claimants commit crimes?
 
The second aspect of this ruling we consider unfavorable to business is our highest court looked at a situation where an individual had clearly and unequivocally broken the law—it is our understanding from the record this claimant spray-painted graffiti on his employer’s shelving or equipment. We caution our readers we are unaware of the worker actually being charged with a crime but we also have no concern that, if the employer decided to have him charged, he would have been convicted based upon the undisputed evidence in the record. We ask all the attorneys on both sides, along with risk, safety and health managers and claims adjusters who read this—if your worker spray-painted graffiti in your work-place, would that be a crime? Should the Commission and courts reward such behavior with additional statutory benefits?
 
So we can all read their ruling and understand our Illinois Supreme Court has arguably awarded over $5,000 to someone who violated Illinois law. This is the second such ruling from the Illinois reviewing courts this past year where benefits were awarded when crimes were committed. You may recall the Bassgar ruling from October 2009 where the employee was convicted of battery in a fight with his supervisor and still got full benefits for his “accidental injuries” from fighting with the supervisor. Being convicted of a crime doesn’t appear to bother some members of the Illinois workers’ compensation community—as lawyers and officers of the courts of this state, it truly bothers us.
 
We are confusedshould all employers/carriers/TPA’s pay only TTD when workers are on light duty?

Is temporary partial disability or TPD ended as a legal concept as fast as labor got it enacted in 2006?
 
This decision has what appears to be an inherent contradiction or paradoxical inference when applied to the basic principles of workers’ compensation law and benefits. The court appears to seemingly skip the troublesome word “total” in temporary total disability. The claimant in Interstate Scaffolding returned to work—he wasn’t temporary totally disabled. Both sides agree he was partially disabled but there is no question he had recovered sufficiently to return to some sort of work before getting out his spray-can and getting “canned” himself. No one questions the fact he wasn’t getting TTD while working light duty prior to getting fired he received regular pay. We note he didn’t ask for TTD prior to being fired. After this ruling, should all claimant attorneys start to ask for TTD even though their clients are working; albeit at light work?
 
The Commission and courts got tied up in defining “maximum medical improvement” as their sole legal basis to terminate the right and duties involving temporary total disability. However, with respect to the Court, we do not feel this should be the measure for TTD entitlement, as it completely fails to consider light duty status as a basis to end TTD and pay regular pay. Therefore, if you apply the literal meaning of Interstate Scaffolding ruling; you would continue to owe any claimant temporary total disability after they were back to light duty work!
 
Who just discovered MMI and why/where/how did we recently uncover it in the same Act that has been around 100 years?
 
How does that happen? Well, our highest court has set down what we consider a new rule that TTD is always owed until claimant is at “maximum medical improvement” or MMI. As a preliminary matter, we want our readers to understand those three words do not appear in the Workers’ Compensation Act or Rules Governing Practice and appear to be another “new discovery” in an Act that is about 100 years old. It is our view these three words are being brought into Illinois workers’ comp law via judicial legislation without hearings or anyone in the legislature signing off on them after testimony in the Illinois House and Senate or after other investigation.
 
We point out there is no particular or reliable legal definition of MMI you can work off from Illinois legislative language, history or other resources. We ask the rhetorical question—what if a treating doctor says the worker is generally recovered and okay to work with some accommodation but come back in a year for a final check-up? When would MMI be reached? Do you owe another year of TTD?
 
We next point out every claimant on light work is arguably not at MMI—they are on medically modified duty as part of the recovery process. Anyone who understands basic principles of workers’ compensation understands workers can work at light or modified work long before they are fully recovered and continue to need medical care. In fact, part of most injured workers’ recovery is the period of light work where they are able to slowly and smoothly pick up their old tools and take their time but get back to a functional existence at their former job. No one in such a setting is at “maximum medical improvement” by definition—they are still under the active care and supervision of a doctor, physical or occupational therapist.
 
The question you have to ask after this unusual ruling—are all injured workers entitled to TTD only? By that we mean, if a worker returns to light or medically modified duty prior to MMI, it appears our highest court has now ruled they can only receive TTD. If so, what in tarnation is temporary partial disability or TPD and why did the legislature bother with it? Has our highest court stripped out or rendered useless that relatively new portion of the Act just four years after its enactment?
 
Please also remember Illinois municipal workers are allowed a year of regular pay while recovering from a work injury—what do they now get while off work; regular pay or TTD? Are they now entitled to both TTD and regular pay? If they don’t get both, do they get TTD as this court suggests when back to work on light duty?
 
We certainly don’t think our Commission and reviewing courts intended this bizarre and confusing outcome. We have never seen anyone working and being paid a regular wage at light duty that was also entitled to full TTD—we feel this ruling may either imply or require such an outcome. However, we do not recommend paying both TTD and wages at this time.
 
The Big Picture—Illinois courts keep inventing new stuff to trap and trip risk, safety and claims managers
 
The big picture on this mess is everyone on both sides was happy for about 100 years to see workers on light duty getting regular pay. If the worker on light duty did something egregious, illegal or inappropriate, our advice was to let them go and not pay any further benefits. There is now a very defined risk to doing so in this nutty state—we are confident folks who aren’t as informed as you are going to get caught in this new snare because it simply makes good common sense to fire and not pay someone who is illegally spray-painting their employer’s workplace. Our advice to everyone is contact us about firing anyone who has or might make a workers’ compensation or occupational disease claim.
 
If you are wondering how well-settled Illinois law has again wildly changed after about 100 years of implementation of our Act and Rules, we have to admit we are as confused as you. Please forward your thoughts and comments on this new ruling or post them on our award-winning blog.

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Eugene Keefe is a principal with Keefe, Campbell & Associates, a Chicago workers' compensation defense firm. This column was reprinted with with permission from the firm's client newsletter.