Does the Workers' Compensation System Really Want to Encourage and Reward Thieves?
Tuesday, October 7, 2014 | 0
As licensed Illinois attorneys and court watchers, we confirm for our readers the strongest respect for the venerated members of our Appellate and Supreme Courts. The men and women on those judicial bodies are of the highest caliber and beyond reproach. They have to deal with civil litigation and criminal law at the highest level. They are entrusted with our safety and security in interpreting and creating our law.
That said, we consider the unexpected and odd turn that has occurred in Illinois workers’ compensation law and practice to be a problem for all judges, justices, lawyers and other participants in the system. This week, we read an appellate ruling which can only be characterized as surprising and unusual because it reverses the Workers' Compensation Commission and awards an admitted thief almost six months of temporary total disability benefits and almost completely ignores the crimes he committed. Having read the ruling several times, we don’t see any way to view this ruling in a fashion that doesn’t encourage and reward criminal behavior in the workers’ comp injury recovery process.
In Matuszcsak v. Workers’ Compensation Commission, No. 2-13-0532WC, issued Sept. 30, claimant worked for Wal-Mart for over three years as a full-time night stocker. His job duties included taking five- to 100-pound boxes off skids and neatly placing products in proper areas. On March 7, 2010, there is no dispute that claimant injured his neck, back and right arm at work when several fully stocked shelves of glass cleaner fell on top of him. On March 9, 2010, claimant began seeking medical care. Thereafter, he received conservative treatment from various providers and was consistently given modified-duty work restrictions. Following his accident, Claimant returned to work for Wal-Mart in a light-duty capacity. On May 23, 2011, claimant saw Dr. Mark Lorenz, who recommended surgery on claimant’s cervical spine.
Claimant admitted under oath, on June 12, 2011, he was terminated from his employment at Wal-Mart for several incidents of theft wholly unrelated to his work injury. Thereafter, claimant remained unemployed. On cross-examination claimant agreed, at the time of his termination, he prepared a handwritten statement acknowledging he stole cigarettes from Wal-Mart on June 3, 2011, and on a “couple of days” in May 2011. He agreed, at the time he took the cigarettes, he understood that stealing is a crime and stealing from his employer could and did result in termination.
What is most challenging for our readers to contemplate, claimant acknowledged under oath that, had he not repeatedly stolen cigarettes, he would still be working for Wal-Mart in a light-duty capacity at the time of arbitration. In effect, petitioner admitted he should have been terminated for several crimes he committed. In states outside Illinois, when you admit you committed a serious crime, you lose your job and the pay that comes with it. In Illinois, it appears injured workers on light duty can lose their jobs for dangerous and antisocial behavior but keep the pay or benefits that come with the job, even though they have been fired. Claimant/admitted thief Wally Matuszcsak received an award of temporary total disability amounting to over $7,550. As licensed Illinois lawyers sworn to uphold the Illinois Constitution and laws of this state, we completely disagree with this approach.
On Jan. 25, 2012, the arbitrator issued his decision and determined claimant sustained accidental injuries and awarded:
- 23-2/7 weeks TTD benefits from the date of termination for theft to the date of the Arbitration hearing.
- $14,227.41 in medical expenses.
- Prospective medical expenses – the surgery recommended by Dr. Lorenz.
In awarding almost six months of TTD, the arbitrator noted claimant was subject to light-duty restrictions that were being accommodated by the employer at the time of his termination. Petitioner did not return to work elsewhere after being terminated, and Claimant testified he was looking for work within his restrictions. We note Respondent did not appear to demonstrate the availability of light work in the area around Petitioner’s home. From a defense perspective, we would have placed such evidence into the record either via lay or expert testimony.
The legal theory we consider flawed and lacking solid commonsense comes from two closely related factual findings by the arbitrator that follow the Illinois Supreme Court’s 2010 ruling in Interstate Scaffolding v. IWCC. The Arbitrator determined:
- 1. Claimant’s medical condition had not “stabilized at the time of arbitration.”
- 2. Claimant had not reached maximum medical improvement, or MMI.
In our view, those concepts are so closely aligned, they are effectively identical. When those factors were present in the record, the Arbitrator ruled temporary benefits were due on a continuing basis. Please understand Claimant’s condition was unquestionably “stable” to the extent he was able to perform light work and could have been doing so during the pendency of the litigation. The IWCC panel knocked out the TTD award in their decision, Judge Wheaton in DuPage County reinstated TTD, and the Appellate Court affirmed reinstatement of 23 weeks of TTD. In our view, the ruling of the Appellate Court, WC Division mandates an award of TTD as a “matter of law” without any regard for how egregious the conduct leading to termination might be.
The asserted lack of medical “stability” arises from the recommendation from a noted surgeon that a medical procedure needed to be performed at an unknown future time. The finding about maximum medical improvement or MMI is another aspect of dealing with Illinois workers' compensation law and practice – like medical stability, “maximum medical improvement” is a buzzword or legal term that doesn’t appear and isn’t defined in our Illinois Workers' Compensation Act or Rules Governing Practice. This means these two terms were judicially adopted or created and implemented by our reviewing courts. The courts can provide the definition of those not-particularly-clear terms, as they see fit. The problem with courts creating such concepts as “judicial legislation” is workers' compensation system participants only get the snapshot on the new legal terms that our courts provide on a relatively random and case-by-case basis – they have to wait for claims to reach them to outline their rulings based upon the new facts.
If you understand the basic precepts of workers’ compensation law, this relatively new and unprecedented legal requirement that TTD or lost-time benefits are due until an injured worker reaches a medically stable situation or maximum medical improvement makes little sense to us. The term in the IL WC Act “temporary total disability” doesn’t appear to be challenging to interpret. To us, it means the worker can’t work at all due to a temporary, work-related medical condition. A significant percentage of workers with serious lost-time injuries return to light work long before reaching a state of medical stability or maximum medical improvement. If you ask the great surgeons across our state, such as Dr. Michael I. Vender, Dr. Andrew S. Zelby or Dr. Brian J. Cole, they will confirm returning to light work following many serious injuries is an irreplaceable part of the medical recovery process. In short, if you can work light duty, you are no longer “temporarily totally disabled” from all work. We are also aware of a large number of workers who remain in light-duty positions, awaiting approval or rejection of a request for surgery, as Plaintiff-Petitioner Matuszcsak did in the case we are reporting.
We ask all our readers, including lawyers on both sides, how it can make the slightest bit of commonsense to reward a self-confessed thief who took himself out of the ongoing light work in the Wal-Mart work force for admittedly committing several crimes? Does anyone feel this is a good idea? We note the Workers' Compensation Commission did not follow a “lock-step” approach in reaching their decision to award or deny TTD when someone on light work loses their jobs due to crimes. We salute these administrators for doing so. We note plaintiff-petitioner in the Interstate Scaffolding ruling did not admit to criminal behavior, as claimant Matuszcsak did and there were many factual conflicts in the earlier claim – it was not clear-cut. We urge our reviewing courts to reconsider these rulings
The problem our commissioners may have anticipated was what might have happened if claimant Matuszcsak had committed a more serious crime and not just petty thefts. What if a worker on light duty “goes postal?” What if he/she killed, robbed or seriously injured an innocent victim? Would he or she still be entitled to TTD? What if they pleaded guilty and ended up in prison? Would they still be entitled to months or years of TTD benefits while behind bars? Does that make sense to anyone?
In our view, the ruling by the Appellate Court, Workers' Compensation Division in Matuszcsak which follows their view of the theories outlined by our Supreme Court in Interstate Scaffolding, has this significant legal concern. From our respectful view, if a Claimant on light duty in this state commits a job rule violation or misdemeanor or serious felony and thereby loses their job, these courts leave no “wiggle-room” for our administrators to deny TTD benefits. It is our further view such a strained legal rule rewards and thereby implicitly encourages Petitioners to commit crimes. It is our hope the Appellate Court, Workers' Compensation Division approves this claim for further review by our highest court and the members of that body take the case and provide the entire workers' compensation community with guidance on how to best handle such matters without implicitly or explicitly rewarding criminal behavior.
Eugene Keefe is a founding partner of Keefe, Campbell & Biery Associates, a workers' compensation defense firm in Chicago. This column was reprinted with his permission from the firm's client newsletter.
Comments