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Biery: A Brave New World or Return to Sanity?

By Shawn Biery

Wednesday, June 28, 2017 | 666 | 0 | min read

We have seen multitudes of cases in which temporary total disability is being paid even after termination for cause based upon the holding that indicated generally that the Appellate Court would not consider the actual details of the cause.

Shawn Biery

Shawn Biery

In most cases, this was difficult to avoid. However, we consistently advised clients that certain cases should be considered for litigation back to the Appellate Court to clarify the ruling in particularly egregious cases where payment of TTD really did appear to be unwarranted.

Now, we get some case law to support our consistent recommendations to our clients and interested observers.

In Holocker v. IWCC (Komatsu America Corp.), No. 3-16-0363WC, 06/16/2017, the Illinois Appellate Court ruled that a worker who was fired before attaining maximum medical improvement for his industrial injuries was not entitled to TTD benefits after he lost his job.

By way of background, Scott Holocker worked for the Komatsu America on crane duty when a chain broke loose from a crane he was operating in September 2012, striking him in the face and chest. The blow knocked out four teeth and caused facial fractures.

Holocker missed one month of work, returning to light duty in October 2012 and to full duty in December 2012. However, upon his return, Holocker requested he not be given any crane duties. He was obliged and assigned to a position as a forklift driver in a building without cranes.

Later in May 2013, Holocker was reassigned to a position in the building where his accident had occurred, and he reported a panic attack in July 2013 when he attempted to operate the crane that had caused his injuries.

Holocker asked to be reassigned to a new position, and his employer offered him a janitorial assignment, which he refused. In October 2013, Komatsu fired Holocker after he missed three consecutive days of work without calling in sick. While he did undergo dental surgery the next month, his doctor excused him from work between Nov. 13 and Nov. 20, only based upon our reading of the facts.

Holocker proceeded on his workers' compensation thereafter and the arbitrator found Holocker was entitled to temporary total disability benefits from the date of his termination through the date of the arbitration but declined to any award of attorney fees or penalties.

Both parties appealed, and the Illinois Workers’ Compensation Commission overturned the TTD award. However, the Circuit Court later reinstated the arbitrator’s award.

The Illinois Appellate Court held that the commission’s decision to deny TTD benefits after Holocker’s termination was not against the manifest weight of the evidence even though he had not yet reached maximum medical improvement at the time of his termination. In doing so, the court noted Holocker had been released to full-duty work and was back to work at his old job.

It was also noted there was evidence that Holocker remained employable, even with his work-related physical and psychological conditions. To quote the court, “Accordingly, there was ample evidence to support the commission finding that, at the time of his termination, the claimant's work-related injuries had stabilized to the extent that he was able to re-enter the workforce, and his injuries had no impact on his employment.”

While we are thrilled to see a common-sense decision be made even though it is employer-oriented, we also believe it could have been as easily noted that work was available and refused, and find it to be an even stronger decision of the Appellate Court that we hope is a signal that fair play is back with regard to legitimate issues surrounding disputes on return to work.

In cases where an individual is committing theft, threatening co-workers or simply refusing to comply with offered accommodated work offers, we suggest there is new hope that you do not need to simply lie back and accept the noncompliance.

Shawn R. Biery is a partner of Keefe, Campbell, Biery and Associates, a Chicago-based workers' compensation defense firm. This column was reprinted with his permission from the firm's client newsletter.

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