1. Workers’ Compensation Lawyers Association MCLE Interstate Scaffolding: The Supreme Court Speaks; When Can TTD Be Cut Off? Anthony J. Cacchillo for Respondent Marc A. Perper for Petitioner Wednesday February 24, 2010 Chicago, IL 1 hour general MCLE credit

2. What’s the Issue? Is Petitioner entitled to TTD after being terminated from employment? Statute: “If the period of temporary total incapacity for work lasts more than 3 working days, weekly compensation as hereinafter provided shall be paid beginning on the 4 th day of such temporary total incapacity and continuing as long as the total temporary incapacity lasts.” 805 ILCS 305/8(b) See prior WCLA MCLE’s 11-13-08 & 4-23-08

3. Interstate Scaffolding Facts Union carpenter suffers heat exhaustion and related head and neck injuries on 7-02-03 Treatment by Dr. James Young Released to and RTW light duty with Respondent in 2-05; Petitioner paid TPD Petitioner writes “religious slogans” on walls at work in 4-05 (“Jesus is the way, the truth and the life” John 14:6) Respondent terminates Petitioner’s employment on 5-25-05 “for defacing company property”

4. Interstate Scaffolding Arbitration Arbitrator Leo Hennessy, 03WC45987, 8-30-05 (tried 6- 28-05) “(R)estricitons were still in effect” on trial date Parties stipulated to and Respondent given credit for payment of “TTD or maintenance” through 5-25-05 “Notwithstanding the divisive, conflicting testimony regarding the arguments and confrontations of May 25, 2005 at the Respondent’s place of business and the unusual basis for the termination of the Petitioner, this Arbitrator finds the Petitioner is not entitled to temporary total disability benefits subsequent to his termination of May 25, 2005.”

5. Interstate Scaffolding Commission Unanimous Commission modifies (Basurto, Rink & Gore), 06IWCC1010, 11-16-06 “The Commission modifies the Decision of the Arbitrator and finds that Petitioner is entitled to additional TTD from May 25, 2005 through June 28, 2005, a period of 5 weeks, based on the fact that Petitioner’s condition had not stabilized as of the June 29, 2005 Arbitrator’s hearing.”

6. Interstate Scaffolding Circuit Court Judge Bobbi Petrungaro, Will County, confirms, 07MR100, 10-2-07 “The Commission determined that the Petitioner was not fired for cause and was on light duty when terminated by the Respondent employer.” “The determination of when recovery or stabilization of condition occurs is a question of fact to be determined by the Commission, and unless its findings are contrary to the manifest weight of the evidence, they will not be set aside on review.”

7. Interstate Scaffolding Appellate Court 3-2 Decision (Grometer, McCullough, Hoffman) reverses & denies benefits, 385 Ill.App.3d 1040 (2008) Issue: “At issue in this case is whether claimant is entitled to payment of TTD benefits following his termination Holding: “We hold that an employee is not entitled to collect TTD benefits after he voluntarily removed himself from the work force for reasons unrelated to his injury.” Standard of review: “The period during which a claimant is temporarily totally disabled is a question of fact for the Commission;” therefore, manifest weight

8. Appellate Court Law applied: “The dispositive issue is whether the claimant’s condition has stabilized, i.e. whether the claimant has reached MMI.” Medical supports no MMI: “Thus, there was sufficient evidence to support the Commission’s finding that claimant’s condition had not stabilized.” End of story? No: “Although we agree that claimant was still temporarily totally disabled at the time of his termination, the more interesting aspect of this appeal is whether claimant is entitled to TTD benefits following his discharge from respondent’s employ.”

9. Appellate Court Summary of findings below: “In confirming the decision of the Commission, the circuit court stated that ‘the Commission determined that the claimant was not fired for cause.’ We find no language to this effect in the Commission’s decision. To the contrary, as respondent conceded during oral arguments, the arbitrator relied on the claimant’s discharge in deciding that claimant’s discharge in deciding that claimant was not entitled to TTD…Thus, the Arbitrator tacitly concluded that claimant’s termination was for cause. The Commission affirmed that portion of the Arbitrator’s decision.” WHAT?

10. Appellate Court Case of first impression?: “Nevertheless, the parties have not provided us with any authority addressing the impact of an employee’s termination on his entitlement to TTD benefits subsequent to the date of dismissal.” Appellate Court doesn’t really like Respondent’s cited non-cooperation cases, including Gallentine: “(T)hey are not directly on point.” So what does majority rely on?

11. Appellate Court City of Granite City: Petitioner is not entitled Schmidgall: Petitioner is entitled Professor Larson summarizes other jurisdictions and finds 2 different approaches Approach 1(volitional act bar): “Some jurisdictions deny compensation to employees who, after resuming employment following a work related injury, are terminated for misconduct where the disability played no part in the discharge…(Citing cases from Feds, LA, MS, MI & VA)…These courts reason that an employee should not be rewarded with disability benefits where the unemployment was not related to the disability but rather to a volitional act over which the employee exercised some control.”

12. Appellate Court Approach 2 (proximate cause): “Other jurisdictions hold that an employee’s discharge from light-duty work for misconduct unrelated to his disability does not automatically bar the employee from receiving disability benefits. These courts allow the employee to collect benefits if he can establish that the work-related disability hampers the employee’s ability to obtain or hold new employment…(Citing cases from NJ, NC & MN)…causal connection between the wages lost and the injury...loss in wages was proximately caused by the injury.”

13. Appellate Court So, which Approach does Appellate Court favor? Approach 1 (volitional act bar): “We find that allowing an employee to collect TTD from his employer after he was removed from the work force as a result of a volitional conduct unrelated to his injury would not advance the goal of compensating an employee for a work- related injury. Instead, it would provide a windfall…” Comports with Granite City & Schmidgall: “in that it focuses on the reason the employee was removed from the work force”

14. Appellate Court Applying Approach 1 (volitional act bar) to this case Claimant “tacitly conceded” that he was removed from the work force as a result of volitional acts unrelated to his employment “Simply stated, but for his conduct in defacing respondent’s property, claimant would have continued receiving TTD benefits until his condition stabilized” Oops! Petitioner was not receiving TTD benefits at the time of his termination! “During oral arguments, we were advised that at the time that claimant was employed in the light-duty position, he was receiving a salary from respondent as well as a separate benefit from respondent’s insurance carrier.”

15. Appellate Court Dissent Donovan & Holdridge “The majority has announced a new principle which provides that temporary disability benefits may be discontinued where an employee upon returning to work light duty or to a rehabilitation assignment, is terminated from the work force as a result of his volitional acts of conduct (or misconduct) that are unrelated to his disabling condition. Though I accept the general principle, I cannot join in the remainder of the decision because the majority provides no standards for practical application of the newly announced principle. In addition, I disagree with the outright reversal of the Commission’s decision.”

16. The Interstate Scaffolding Problem Watts v. Ingalls, 09IWCC332 “But there was no damage to property here as in Interstate Scaffolding. There was no harmful or offensive touching. There was no threatening or intimidating behavior. There was no assault. Without meaning to minimize what happened, it was offensive language, not conduct, and all parties agree it was not aimed directly at Ms. Ohern. If Ms. Greiss had not repeated it to her, there would have been no offense taken by Ms. Ohern…The Arbitrator has closely read and considered the Interstate Scaffolding case, which was decided 3-2, and the Arbitrator would prefer more information as suggested in Justice Dixon's dissent. Would a similar employee who was not on light-duty have been terminated under the same circumstances, without one of the less severe steps being taken first? This case was tried before Interstate Scaffolding was published, and so there is no evidence in the record about that. But the majority decision does not require it in any event. In the absence of that, however, it is possible that the respondent merely took advantage of the situation, terminated the petitioner, and cut off their liability for future TTD benefits. In any event, the Arbitrator has no jurisdiction to resolve employment disputes. He is not empowered by the Interstate Scaffolding case to make inquiries along those lines, because apparently it is not considered relevant. As indicated above, the Arbitrator then feels he has no choice but to follow the Court's lead.”

17. Supreme Court No. 107852, filed 1-22-10 “In this appeal we are asked to consider whether an employer’s obligation to pay temporary total disability (TTD) workers’ compensation benefits to an employee who was injured in the course of his employment ceases when the employer terminates the employee for conduct unrelated to the injury.” “We permitted the Illinois Trial Lawyers Association and the Illinois AFL-CIO to file amicus curiae briefs in support of Urban. In addition, the Illinois Association of Defense Trial Counsel and the Illinois Self Insurers Association were permitted to file amicus curiae briefs on behalf of Interstate.”

18. Supreme Court No. 107852, filed 1-22-10 “Thus, the issue before us is one of law–whether an employer’s obligation to pay temporary total disability benefits to an employee who suffered a work-related injury ends if the employee returns to work for a light-duty assignment and, while working light duty, is terminated for conduct unrelated to his injury. Our review, therefore, is de novo.” “It is a well-settled principle that when a claimant seeks TTD benefits, the dispositive inquiry is whether the claimant’s condition has stabilized, i.e., whether the claimant has reached maximum medical improvement.” “We have reviewed the appellate court judgment and find that neither the majority nor the dissent has reached the correct conclusion on the issue before this court.”

19. Supreme Court No.107852, filed 1-22-10 “Looking to the Act, we find that no reasonable construction of its provisions supports a finding that TTD benefits may be denied an employee who remains injured, yet has been discharged by his employer for ‘volitional conduct’ unrelated to his injury. A thorough examination of the Act reveals that it contains no provision for the denial, suspension, or termination of TTD benefits as a result of an employee’s discharge by his employer. Nor does the Act condition TTD benefits on whether there has been ‘cause’ for the employee’s dismissal. Such an inquiry is foreign to the Illinois workers’ compensation system.” “The appellate court found that permitting the termination of benefits to an employee who is ‘justifiably’ discharged ‘comports with the [position] taken in Granite City and Schmidgall.’ We disagree.”

20. Supreme Court No.107852, filed 1-22-10 “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.”