Injured workers must seek work to qualify for maintenance benefits.

Thursday, November 1, 2007 | 0

--By Michael E. Rusin

Following a work injury, if a claimant is disabled from returning to work, he is entitled to temporary total disability (TTD) for the period of time he is totally disabled from working.

The right to TTD lasts for as long as the claimant is totally disabled from all forms of work and is undergoing regular medical care. The right to TTD ends when a claimant has reached medical stability or maximum medical improvement (MMI). Once a claimant has reached MMI, his right to TTD ends.

This concept was established by case law years ago. The question arose as to whether a claimant is entitled to any other weekly benefit once he reaches MMI. If a claimant reaches MMI and has no work restrictions or has permanent work restrictions but is still able to perform his regular job duties, his right to TTD ends and he is no longer entitled to weekly benefits other than permanent partial disability. There is no obligation to offer petitioner a job within his restrictions if the restrictions are consistent with his prior work duties. The Workers’ Compensation Act does not require an employer to take a claimant back to work after he reaches MMI. The right to TTD ends. The right to all weekly benefits ends.

The problem arises where a claimant, at the point he reaches MMI, is given permanent work restrictions. If the permanent work restrictions do not allow a claimant to return to his prior job duties, the question arises as to whether any additional weekly benefits are due the petitioner.

Prior to Feb. 1, 2006, the Commission began to award weekly benefits for claimants with permanent restrictions. They couldn’t call it TTD because TTD wasn’t available. Therefore, the Commission began to award benefits at the TTD rate but they called the benefits “maintenance.”

There is no particular reason why the Commission called the benefits maintenance other than the fact that there was no other section of the statute they could point to that would justify weekly awards. The concept of maintenance was created by case decision.

The length of time a claimant is entitled to maintenance is unclear. This is frequently an issue in dispute. By case law, a claimant is entitled to maintenance after he reaches MMI until either (1) petitioner finds work within his restrictions or (2) the employer can show that there are jobs reasonably available within petitioner’s restrictions if petitioner reasonably sought employment.

The question is frequently whether a claimant has the obligation to look for work or whether the employer when faced with permanent restrictions has the obligation to assist the claimant in finding a job. Case law tells us that the first obligation is on the claimant. Once a claimant reaches MMI, his right to TTD ends. His right to maintenance does not immediately begin. In order to justify a claim for maintenance, a claimant must look for work within his restrictions. The job search must be diligent and reasonable. Employers frequently demand, with justification, written documentation of a job search showing that the claimant is actively seeking employment.

In order to justify a claim for maintenance, the employee must look for work. If a claimant is not reasonably looking for work, there is no right to maintenance. If a claimant stops looking for work, his right to maintenance ends.

The question frequently asked is, “When is the employer obligated to provide vocational rehabilitation or vocational placement assistance?” Case law says that if the employee looks for work and is unsuccessful, the claimant has satisfied his burden and the burden then shifts to the employer to prove that there are jobs available within a claimant’s restrictions. There are many ways that an employer can prove the claimant is not entitled to maintenance.

The first is to perform a labor market survey and show that there are jobs available to petitioner within his restrictions. The second would be to assign a vocational counselor and place petitioner in a vocational placement program. Once the vocational consultant finds claimant a job, the claimant is obligated to take that job, or else his right to maintenance ends. If the claimant fails to follow through or cooperate with the vocational placement program, his right to maintenance benefits ends.

If the claimant’s restrictions are severe and his education and past work history are poor, the employer might need to place the claimant in a vocational retraining program. During the time that a claimant is in a vocational placement or retraining program, his right to maintenance benefits continues.

This concept of maintenance created by case law was codified and became part of the statute February 1, 2006. The right to maintenance benefits as set forth in the statute is no different from the right to which the petitioner was entitled prior to the statutory change. The statutory change simply gives the Commission statutory authority to award a benefit that they were already awarding. The maintenance benefit as defined by statute is at the same level as the temporary total disability benefit.

Employers must be wary of claims where petitioner has permanent work restrictions. The greatest concern is that if the employer does not take proactive action and assist with vocational placement, a claim of maintenance can turn into a claim of permanent and total disability. It’s important to recognize that the permanent total disability rate has a very high minimum, one-half of the state’s average weekly wage in effect at the time of the accident.

Therefore, someone who is earning TTD at a fairly low rate can become a permanent total at a significantly higher rate.

It is always risky to allow a claimant to perform a self-directed job search for a lengthy period of time. It may be worthwhile to force a claimant to do a self-directed job search. However, after a reasonable period of time, if the claimant is not successful with a self-directed job search, the employer should proceed with a labor market survey. The employer should consider hiring a vocational consultant to perform a vocational analysis and assist with vocational placement. As a last resort, the employer should consider vocational retraining to place a claimant in an alternate line of work.

The new statute, effective Feb. 1, 2006, also created temporary partial disability benefits. Prior to Feb. 1, 2006, there was no provision in the statute which addressed the issue of temporary partial disability.

Prior to Feb. 1, 2006, if a claimant returned to work at a reduced wage or reduced hours, there was frequently a dispute as to whether any benefits were owed to a claimant. Several Commission decisions state that no benefits were owed because the Act did not provide for temporary partial disability. The Act only provided for permanent wage differential. However, several cases were presented to the Commission wherein a claimant returned to work on a temporary basis at reduced hours and reduced and/or reduced wages.

The earnings of the claimants when they went back to modified work were less than what they were receiving in TTD. In conflicting Commission decisions, benefits were awarded. In some cases, the Commission classified the benefits as TTD. In some cases, the benefits were classified as maintenance. It is better to classify such benefits as maintenance, rather than TTD. In circumstances where additional benefits were awarded, even though a claimant was working, the Commission generally gave the employer credit for wages paid as against the TTD or maintenance award. However, one appellate court case states that wages are not credited to the employer during a period of TTD.

The general rule of thumb is that prior to Feb. 1, 2006, if a claimant returns to work at reduced hours or reduced wages, and the net pay is less than the TTD/maintenance rate, the employer would be wise to pay benefits. The benefit that should be paid should be called maintenance and the amount that should be paid is the difference between the TTD/maintenance rate and the net earnings of the claimant after taxes.

If the accident date is Feb. 1, 2006 or after, no maintenance should be paid, but instead temporary partial disability should be paid as prescribed by statute.

Michael E. Rusin is a partner with the Rusin Maciorowski & Friedman law firm in Chicago.