Risk Managers and Claims Handlers – Please Don’t Make the Matuszczak-Mistake!

Wednesday, December 31, 2014 | 0

Last week, in Matuszczak v. Illinois Workers' Compensation Commission, our Workers' Compensation Appellate Court refused to rehear the matter, which basically makes their ruling final. The matter involved a Wal-Mart worker who suffered an accepted injury but a dispute arose over the need for work-related surgery. While awaiting the hearing and a ruling, it appears the worker was caught stealing cigarettes and appears to have worked out a deal where he admitted the crime and was terminated for it by agreement.
 
When Wal-Mart and Wally Matuszczak agreed to part company, they weren’t able to also end/settle the pending workers’ comp claim. What happened thereafter was nothing – the injured worker didn’t return to light work elsewhere and his pending claim for surgery drug out for about six months. Obviously, claimant couldn’t work light work at Wal-Mart any more, as he was canned for being an admitted crook.
 
What did our reviewing courts do then? Well, they looked at the Illinois Supreme Court’s controversial ruling in Interstate Scaffolding to create another controversial ruling – despite being offered light work at Wal-Mart, claimant was awarded about 24 weeks of temporary total disability even though he could and would have been working at Wal-Mart, if not for his decision to steal from the company. We urge you not to let miscreants profit from wrongdoing when you are nice enough to offer light work.
 
What do we feel the mistake was? Well, if you have an injured worker on light work who openly or admittedly commits a crime, we vote you fire him/her for it. If they commit “bad acts” short of a crime but which amount to personnel policy violations, take appropriate disciplinary action and consider contacting defense counsel to discuss. But we feel these two rulings require you to take one more step to avoid the Matuszczak-Mistake – find them alternative light work somewhere else.
 
In both Interstate Scaffolding and Matuszczak, both reviewing courts, but specifically our Illinois Supreme Court, “acknowledged TTD benefits may be suspended or terminated when a claimant refuses work within his physical restrictions.” This indicates the burden is on the employer to demonstrate claimant is refusing work within physical restrictions. If you can’t demonstrate the refusal of work within restrictions, you have made a major claims mistake. Based on that language, we suggest you push the worker to locate

• Charity work at the Salvation Army, a local church or other suitable institution.
• Part-time sedentary/light/moderate work.
• Full-time sedentary/light/moderate work.

Consider doing an informal online job search with and for the injured worker. Please note many staffing companies and medical institutions in your area may have lots of sedentary, light and moderate jobs posted on their websites – print them out and give/mail/email to claimant and put them in your file. Encourage the worker to apply and obtain alternate work. Carefully document all of your efforts.
 
What do you do if claimant refuses to even try to find your recommendations for alternative light work? (See the quote from the Illinois Supreme Court above.) If claimant refuses work within his restrictions, they affirm you can suspend/terminate TTD. The message we are trying to get out to our readers is your duty to demonstrate the refusal isn’t implied when you fire the worker for improper actions/conduct.
 
In a claim with high-end exposure, we recommend you retain a certified vocational consultant to demonstrate the continued availability of alternate sedentary, light and moderate work and the worker’s refusal to obtain such work. Have the certified rehabilitation counselor provide and document outplacement services for the worker.

Eugene Keefe is a founding partner for Keefe, Campbell, Biery & Associates, a Chicago workers' compensation defense firm. This column was reprinted with permission from the firm's KCBA Blog.