WCLA MCLE Temporary Partial Disability: When & How Much Tuesday January 26, :00 noon to 1 pm James R. Thompson Center Auditorium, Chicago, IL 1 hour general MCLE credit Guest Speaker: Patrick B. Nicholson Cullen, Haskins, Nicholson & Menchetti, P.C.

Interstate Scaffolding IL Sup. Ct. No ; filed “For the reasons stated above, we hold that an employer’s obligation to pay TTD benefits to an injured employee does not cease because the employee had been discharged–whether or not the discharge was for “cause.” When an injured employee has been discharged by his employer, the determinative inquiry for deciding entitlement to TTD benefits remains, as always, whether the claimant’s condition has stabilized. If the injured employee is able to show that he continues to be temporarily totally disabled as a result of his work-related injury, the employee is entitled to TTD benefits.” See you on February 24, 2010!!!

Temporary Partial Disability Issue When the Petitioner returns to temporary light or restricted duty work and earns less than full duty work, is the Petitioner entitled to any benefit and if so, how much?

Accidents Prior to There was no such thing as “temporary partial disability” Fox v. Ketterman, 09 IWCC 0011 (DA 2/28/03): “Based on the foregoing, the Commission hereby modifies the Arbitrator's decision with respect to the award for temporary partial disability benefits. Contrary to the Arbitrator's findings, the Commission finds that Petitioner is not entitled to temporary partial disability benefits. Instead, pursuant to Section 8(d)1 of the Act, the Commission finds that Petitioner is entitled to temporary total disability benefits of $ per week for the periods during which he was totally disabled from working. …The Commission further finds that Petitioner is entitled to maintenance benefits for the period of time during which he worked light duty for Respondent. Petitioner's light duty work contributed to his physical, mental, and vocational rehabilitation from his injury. Further, Petitioner earned significantly less in his light duty capacity as a dispatcher than he did as a satellite installer. Respondent is obligated to pay maintenance benefits in an amount equal to two-thirds of the difference between Petitioner's light duty wage and his average weekly wage, or $ per week.” Another formula: (TTD – light duty pay)

Accidents Prior to Mechanical Devices, 344 Ill. App. 3d 752 (2003): “In Illinois, a ‘temporary partial’ disability benefit is not contemplated under the Act…Thus, the Commission erred when it effectively awarded a temporary partial disability benefit by reducing claimant's TTD award by the wages he earned at the YWCA. However, the Commission's action does not warrant reversal because, as we determined above, the Commission correctly concluded that claimant was entitled to TTD benefits. Therefore, we affirm the Commission's decision awarding claimant TTD benefits for a total of 52 1/7 weeks, but we modify it by eliminating the offset for claimant's YWCA earnings.”

Accidents After New Section 8(a): “When the employee is working light duty on a part ‑ time basis or full ‑ time basis and earns less than he or she would be earning if employed in the full capacity of the job or jobs, then the employee shall be entitled to temporary partial disability benefits. Temporary partial disability benefits shall be equal to two ‑ thirds of the difference between the average amount that the employee would be able to earn in the full performance of his or her duties in the occupation in which he or she was engaged at the time of accident and the net amount which he or she is earning in the modified job provided to the employee by the employer or in any other job that the employee is working.” 2/3 (Full performance – net) Notice differences between Section 8(a) & Section 8(d)1 & Section 10

Applicability of New TPD Section PA : “Section 95. Applicability. The amendatory changes to the first paragraph of subsection (f) of Section 7 relating to payment for burial expenses, subsections (a) and (b) of Section 8, and subsections (h), (k), and (l) of Section 19 of the Workers' Compensation Act and subsections (k) and (k-1) of Section 19 of the Workers' Occupational Diseases Act apply to accidental injuries or diseases that occur on or after February 1, 2006.”

IWCC Decisions Grundeman v. USF Holland, 09IWCC0116: Petitioner gets TPD for time when he earned “85% of union scale”; no formula shown; DA ? Bautista v. Table 52, 09IWCC0133: Petitioner gets TPD for fewer hours; 2/3 (AWW – actual net pay) Bogess v. McLane, 09IWCC0229: Lesser rate of pay; no TPD; DA Sanborn v. Barrington Orthopedics, 09IWCC0361: TPD cannot be based on unexplained payroll records Olson v. J&M Plating, 09IWCC0386: Respondent paid TPD even thought Petitioner never returned to work; Arbitrator said OK and gave credit; Commission converts it to TTD

IWCC Decisions Kolpacki v. National Decorating, 09IWCC0400: TPD awarded based on fewer hours Dillon v. North Logan, 09IWCC0489: TPD denied because Petitioner returned to work for different employer in same job title despite restrictions Hopkins v. Hyde Park Co-Op, 09IWCC0612: TPD denied because DA ; Petitioner claimed not to be able to work for another employer Anzelmo v. Glendale Nissan, 09IWCC0613: TPD denied because Petitioner earned more with different employer

IWCC Decisions Richardson v. Vermililion Manor, 09IWCC0621: TPD awarded on unspecified basis Batts v. Barnes & Noble, 09IWCC0658: TPD awarded for fewer hours of work Oliver v. US Steel, 09IWCC0670: TPD awarded for 2 hours per day even though Petitioner did not accept offer of 6 hour work day (2/3 of 2 hours of pay) Bergen v. TCF Bank, 09IWCC0705: Respondent voluntarily paid some TPD, but should have been TTD instead

IWCC Decisions Cline v. Honeywell, 09IWCC0713: TPD awarded for working fewer hours Palazzolo v. Absolute Cleaning, 09IWCC0746: TPD awarded for fewer hours of work even though maybe Respondent had lost contracts and did not have work Manley v. Caterpillar, 09IWCC0908: Commission vacates TPD award (& penalties) based on full duty release; Petitioner had returned to lower “rehab” hourly rate; 8(j) applied to TPD Dipasquale v. JC Penney, 09IWCC1012: TPD awarded based on RTW part-time only, lower hourly rate and lower commission; explicit formula; 2/3 (AWW – net average)

19(b) for TPD “If the employee is not receiving or has not received…compensation as provided in paragraph (a) of Section 8…may at any time petition for expedited hearing…” Reverse 19(b) for TPD? “Provided the employer continues to pay compensation pursuant to paragraph (b) of Section 8… 12 week limitation? “less than 12 weeks of unpaid compensation pursuant to paragraph (b) of Section 8.”

IWCC Decisions Zarembski v. TCF Bank, 09IWCC1054: Commission confirms voluntary payment of TPD based on fewer hours Amaro v. Weber-Stephens, 09IWCC1058: TPD awarded for fewer hours; formula explicitly stated; 2/3 {(40 hours X rate)-total net}; based on pay check stubs Wutke v. Aldi, 09IWCC1059: Commission reverses Arbitrator’s denial of TPD; Arbitrator found MMI last date of treatment; Commission says no MMI yet; therefore TPD through 19(b) hearing date; 2/3(AWW- what Petitioner says he earns now for different ER)

Dyan McBride v. State of IL 06WC28019; 09IWCC0914 DA yo mental health technician sustains fractures to right arm resulting from fall Prior to injury “regularly worked voluntary overtime” 52 weeks prior to DA: $28, straight (AWW $550.56) + $ total OT ($183.62/week) RTW light duty doing paperwork, but no OT; RTW full duty Full capacity = Gross straight time actually earned ($ )+ average weekly OT ($183.62/week or $2570 total) = $11, TPD = 2/3($11, $ actual net earnings)= 2/3( $ ) = $ “Section 8(a) of the Act regarding TPD places none of the AWW limitations found in Section 10 of the Act regarding OT, nor does it limit the OT to the straight time rate” Credit based on weeks paid not % paid under old schedule