Interstate Scaffolding, Inc. v. Illinois Workers' Compensation Commission

896 N.E.2d 1132, 385 Ill. App. 3d 1040, 324 Ill. Dec. 913, 2008 Ill. App. LEXIS 1017

• Court: Appellate Court of Illinois
• Decided: October 20, 2008
• Docket: 3-07-0801 WC
• Status: Published

Opinions

JUSTICE GROMETER

delivered the opinion of the court:

Claimant, Jeff Urban, sustained a work-related injury while in the employ of respondent, Interstate Scaffolding, Inc. Claimant was eventually cleared to return to light-duty work. Respondent accommodated the restrictions, but subsequently terminated claimant for defacing company property. At issue in this case is whether claimant is entitled to the payment of temporary total disability (TTD) benefits following his termination. The arbitrator ruled that claimant was not so entitled, but the Workers’ Compensation Commission (Commission) and the circuit court of Will County disagreed. We hold that an employee is not entitled to collect TTD benefits after he voluntarily removes himself from the work force for reasons unrelated to his injury.

I. BACKGROUND

Claimant was employed by respondent as a union carpenter. On July 2, 2003, he suffered a work-related injury to his head and neck and sought medical treatment from Dr. James Young. Dr. Young eventually authorized claimant to return to work subject to certain lifting restrictions, and in February 2005, claimant began working light duty for respondent at one of its facilities in East Hazel Crest, Illinois. At the arbitration hearing on his application for adjustment of claim, claimant testified that the work provided by respondent was within the restrictions prescribed by Dr. Young. Claimant continued to work light duty on a regular basis until May 25, 2005, when his employment was terminated.

With respect to the events leading to his discharge, claimant testified that sometime in April 2005, he had written religious inscriptions on the walls and shelves in a storage room on respondent’s premises. Claimant stated that he wrote the inscriptions with permanent marker and that some of his coworkers were aware of the writings. Claimant also indicated that there was other graffiti and drawings on the storage-room shelves prior to when he made the inscriptions. Nevertheless, claimant acknowledged that he did not have permission from respondent to write on the walls and shelves. He also stated that the writings did not pertain in any way to his job duties with respondent and that, aside from the storage room, at no other location on respondent’s premises did non-work-related slogans or writings appear on the walls, affixed shelves, or elsewhere.

On May 25, 2005, claimant brought his paycheck to Rebecca Parks, an employee in respondent’s payroll department. Claimant contacted Parks because he had been overpaid and because no federal taxes were being withheld from his paycheck. Claimant testified that he had received other paychecks that contained overpayments and he “didn’t want to get accused for not saying anything.” After claimant spoke to Parks, she contacted Jan Coffey, the assistant to Ronald Fowler, respondent’s president. According to claimant, Coffey approached him, called him a “hypocrite,” and stated that if he believed the religious slogans that he had written on respondent’s premises, he would have brought the erroneous paychecks to respondent’s attention weeks earlier. Coffey testified that claimant responded that he “deserved those wages” and that he was a “union worker.” In response to the confrontation with Coffey, claimant contacted the East Hazel Crest police department, complaining that he was being harassed and discriminated against because of his religious beliefs. A police officer came to respondent’s facility, interviewed various individuals, and wrote a report. However, no arrests were made, and no one was charged with any crime. Coffey later contacted Fowler, who was out of town, to report the incident and the fact that claimant had contacted the police. At that time, Coffey informed Fowler for the first time about the writings claimant had made on the walls and shelves in the storage room. Fowler subsequently instructed Barry Manuel, claimant’s supervisor, to terminate claimant for defacing company property.

The arbitrator declined to award claimant TTD benefits subsequent to his dismissal. The arbitrator wrote that, “ [n] otwithstanding 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 [claimant], this arbitrator finds [claimant] is not entitled to temporary total disability benefits subsequent to his termination of May 25, 2005.” The Commission modified the decision of the arbitrator and remanded the cause pursuant to Thomas v. Industrial Comm’n, 78 Ill. 2d 327 (1980). Relevant here, the Commission found that claimant was entitled to TTD benefits from May 25, 2005, through the date of the arbitration hearing, “based on the fact that [claimant’s] condition had not stabilize [sic]” as of the date of the arbitration hearing. The circuit court of Will County confirmed the Commission’s decision. Respondent then filed the instant appeal.

II. ANALYSIS

The principal issue in this appeal is whether the Commission erred in awarding claimant TTD benefits following his termination from respondent’s employ on May 25, 2005. The principles governing TTD benefits are well settled. A claimant is temporarily totally disabled from the time an injury incapacitates him from work until such time as he is as far recovered or restored as the permanent character of his injury will permit. Westin Hotel v. Industrial Comm’n, 372 Ill. App. 3d 527, 542 (2007). A claimant seeking TTD benefits must prove not only that he did not work, but that he was unable to work. F&B Manufacturing Co. v. Industrial Comm’n, 325 Ill. App. 3d 527, 531 (2001). The dispositive inquiry is whether the claimant’s condition has stabilized, i.e., whether the claimant has reached maximum medical improvement (MMI). Land & Lakes Co. v. Industrial Comm’n, 359 Ill. App. 3d 582, 594 (2005). The factors to consider in assessing whether a claimant has reached MMI include a release to return to work, medical testimony or evidence concerning the claimant’s injury, and the extent of the injury. Freeman United Coal Mining Co. v. Industrial Comm’n, 318 Ill. App. 3d 170, 178 (2000). Once an injured claimant has reached MMI, the disabling condition has become permanent and he is no longer eligible for TTD benefits. Nascote Industries v. Industrial Comm’n, 353 Ill. App. 3d 1067, 1072 (2004). The period during which a claimant is temporarily totally disabled is a question of fact for the Commission, and its determination will not be disturbed on review unless contrary to the manifest weight of the evidence. Cropmate Co. v. Industrial Comm’n, 313 Ill. App. 3d 290, 296 (2000). In determining whether a factual finding of the Commission is against the manifest weight of the evidence, the relevant test is whether the record contains sufficient factual evidence to support the Commission’s determination. F&B Manufacturing Co., 325 Ill. App. 3d at 532.

In this case, we cannot say that the Commission’s finding that claimant was temporarily totally disabled at the time of his termination was against the manifest weight of the evidence. A review of the record demonstrates that, as of the date of the arbitration hearing, claimant had not been released to full-duty work. Further, none of claimant’s treating physicians indicated that claimant had reached MMI. In fact, the medical evidence establishes that claimant continues to experience various symptoms connected with the work-related accident for which he was still being treated. Thus, there was sufficient evidence to support the Commission’s finding that claimant’s condition had not stabilized.

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. In confirming the decision of the Commission, the circuit court stated that “[t]he 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 claimant’s discharge in deciding that claimant was not entitled to TTD benefits after May 25, 2005. Thus, the arbitrator tacitly concluded that claimant’s termination was for cause. The Commission affirmed that portion of the arbitrator’s decision. 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. Respondent, however, equates the circumstances of this case to situations in which an employee has refused work falling within the physical limitations prescribed by his doctor or in which the employee fails to cooperate in good faith with rehabilitation efforts. In general, these lines of cases provide that an employee is not entitled to TTD benefits. See, e.g., Stone v. Industrial Comm’n, 286 Ill. App. 3d 174, 179-80 (1997) (failure to cooperate); Hayden v. Industrial Comm’n, 214 Ill. App. 3d 749, 755-56 (1991) (same); Gallentine v. Industrial Comm’n, 201 Ill. App. 3d 880, 887 (1990) (refusal of light-duty work); Presson v. Industrial Comm’n, 200 Ill. App. 3d 876, 880-81 (1990) (same); Boker v. Industrial Comm’n, 141 Ill. App. 3d 51, 54-55 (1986) (same); but see Archer Daniels Midland Co. v. Industrial Comm’n, 138 Ill. 2d 107, 116-17 (1990) (rejecting the employer’s claim that because the employee was dilatory with his rehabilitation efforts, he was not entitled to TTD benefits where the employee’s rehabilitation counselor testified that the employee’s progress was satisfactory and where the time frame requested by the employer would have required the employee to engage in more hours of rehabilitation than authorized by his physician); Jewel Food Cos. v. Industrial Comm’n, 256 Ill. App. 3d 525, 531-32 (1993) (rejecting the employer’s claim that the employee failed to cooperate with vocational rehabilitation where the employee contacted 25 employers on his own, he contacted some of the leads provided by his vocational counselor, he advised counselor that he could not meet his financial obligations if he accepted a low-paying job, and he made a “concerted effort” to return to work for the employer).

Although the cases cited by respondent provide some guidance, they are not directly on point. More analogous are two decisions addressing the impact on TTD benefits where the employee returns to light-duty work but is subsequently taken out of the work force. In City of Granite City v. Industrial Comm’n, 279 Ill. App. 3d 1087 (1996), the claimant suffered a knee injury while working as a police officer. Following surgery, the claimant returned to a light-duty position. He worked intermittently for several months, until he took disability retirement. The claimant also sought TTD benefits following his retirement. The Commission denied the request, holding that the claimant voluntarily left his light-duty job and removed himself from the workforce in order to collect a pension. We affirmed the Commission’s decision, noting that the claimant did not present any evidence demonstrating that his injury had not stabilized, that he had not been released for light-duty work, or that he could not perform light-duty work. Granite City, 279 Ill. App. 3d at 1090-91.

In contrast to Granite City is Schmidgall v. Industrial Comm’n, 268 Ill. App. 3d 845 (1994). In Schmidgall, the claimant injured the right side of his body when a coworker accidentally tripped him. Following the injury, the claimant worked in a light-duty capacity until his doctor took him off work. At that time, the respondent began paying TTD benefits. A few months later, the claimant also began receiving social security benefits. The Commission held that the claimant was precluded from receiving TTD benefits once he began receiving social security because the claimant “had removed himself from the work force.” Schmidgall, 268 Ill. App. 3d at 848. We disagreed, reasoning that the claimant had not voluntarily removed himself from the workforce. Schmidgall, 268 Ill. App. 3d at 849. Rather, his doctor had by not releasing him to return to work. Schmidgall, 268 Ill. App. 3d at 849. Thus, Granite City and Schmidgall suggest that the critical inquiry in determining whether the employee is entitled to TTD benefits after leaving the workforce centers on whether the departure was voluntary.

In addition to Granite City and Schmidgall, we also find instructive to our analysis cases from other jurisdictions which address an employee’s entitlement to TTD benefits following a discharge for misconduct. In his noted treatise, Professor Arthur Larson outlines the two approaches used in those jurisdictions that have addressed this issue. See 4 A. Larson & L. Larson, Worker’s Compensation Law §84.04(1), at 84 — 17 (2007). 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. See, e.g., Palmer v. Alliance Compressors, 917 So. 2d 510, 514 (La. App. 2005) (upholding denial of disability benefits following termination where the claimant was discharged for cause and the termination was unrelated to the claimant’s injury); Robinson v. Department of Employment Services, 824 A.2d 962, 964-65 (D.C. App. 2003) (denying compensation where the claimant’s termination was not connected to his injury); Sibley v. Unifirst Bank for Savings, 699 So. 2d 1214, 1220 (Miss. 1997) (rejecting argument that the claimant was entitled to disability benefits following termination for criminal activity where the claimant failed to show that her job-related injury played any part in her discharge); Calvert v. General Motors Corp., 120 Mich. App. 635, 643, 327 N.W.2d 542, 546 (1982) (holding that an employee who is discharged for “just cause” is not entitled to workers’ compensation benefits); Goodyear Tire & Rubber Co. v. Watson, 219 Va. 830, 833, 252 S.E.2d 310, 312-13 (1979) (finding that employee who is terminated for cause and for reasons not associated with his disability is not entitled to benefits). 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. See, e.g., Palmer, 917 So. 2d at 513 (“[W]e recognize that an injured employee cannot *** blatantly violate company policy without the possibility of recourse by the employer”); Calvert, 120 Mich. App. at 643, 327 N.W.2d at 546 (defining termination for “just cause” to include only those “voluntary acts of the employee”).

Courts in 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. See, e.g., Cunningham v. Atlantic States Cast Iron Pipe Co., 384 N.J. Super. 423, 433, 901 A.2d 956, 962 (2006) (holding that an employee who is terminated for cause will be entitled to disability benefits after termination if he can show actual wages lost because of the injury); Seagraves v. Austin Co., 123 N.C. App. 228, 232-33, 472 S.E.2d 397, 401 (1996) (concluding that where an employee who has sustained a compensable injury and has been provided light-duty employment is terminated for misconduct, the employee will be entitled to TTD benefits if the employee can show that any posttermination loss of wages is due to the work-related disability); Marsolek v. George A. Hormel Co., 438 N.W.2d 922, 924 (Minn. 1989) (“[A] justifiable discharge for misconduct suspends an injured employee’s right to wage loss benefits; but the suspension of entitlement to wage loss benefits will be lifted once it has become demonstrable that the employee’s work-related disability is the cause of the employee’s inability to find or hold new employment”). The focus in these cases is on the causal connection between the wages lost and the injury. The courts reason that if the employee can prove that the loss in wages was proximately caused by the injury, TTD benefits should be awarded. See, e.g., Cunningham, 36 N.J. Super, at 432, 901 A.2d at 961 (“The claimant has the burden of proving not only that he was available and willing to work, but that he would have been working if not for the disability”); Seagraves, 123 N.C. App. at 234, 472 S.E.2d at 401 (“[T]he test is whether the employee’s loss of *** wages *** is due to the employee’s work-related disability, in which case the employee will be entitled to benefits for such disability”); Marsolek, 438 N.W.2d at 924.

The overriding purpose of the Illinois workers’ compensation scheme is to compensate an employee for lost earnings resulting from a work-related disability. See Freeman United Coal Mining Co. v. Industrial Comm’n, 99 Ill. 2d 487, 496 (1984); Beelman Trucking v. Illinois Workers’ Compensation Comm’n, 381 Ill. App. 3d 701, 708 (2008). Considering this purpose in conjunction with the case law discussed above, we find that allowing an employee to collect TTD benefits from his employer after he was removed from the work force as a result of 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 by continuing to compensate the employee despite the fact that the cause of the lost earnings following the employee’s departure is unrelated to the injury. We note that this approach comports with the one taken in Granite City, Schmidgall, and those jurisdictions that deny compensation to employees who are terminated for misconduct where the disability played no part in the discharge in that it focuses on the reason the employee was removed from the work force.

Turning to the facts in this case, we note that claimant, did present evidence that his condition had not stabilized at the time that he was discharged. However, he had been released to light-duty work and, in fact, had been able to perform such work for respondent. Further, claimant admitted that he did not have permission from respondent to write on the walls and shelves in the storage room and that the writings did not pertain in any way to his job duties with respondent. In other words, claimant tacitly conceded that he was removed from the work force as a result of volitional acts unrelated to his injury. Indeed, we find no evidence that would indicate that claimant was terminated so that respondent could avoid the payment of TTD benefits. Although some employees knew of claimant’s actions weeks before his firing, the president of the company was not aware that claimant had defaced company property until shortly before the termination. Simply stated, but for his conduct in defacing respondent’s property, claimant would have continued receiving TTD benefits until his condition had stabilized. Thus, we reverse the decision of the Commission awarding claimant to collect TTD benefits from respondent following his discharge for cause.

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. Thus, we must also determine whether claimant is entitled to continue receiving this separate benefit from the insurance company following his termination. In resolving this issue, we find instructive Nascote Industries, 353 Ill. App. 3d 1067. In that case, the employee returned to part-time work for her employer following an injury. Following her return, the employer made voluntary benefit payments to the employee. The arbitrator classified these payments as maintenance and determined that the employer was not entitled to a credit for them against the permanency award. The Commission affirmed and adopted the arbitrator’s decision. On appeal, we acknowledged that the Illinois Workers’ Compensation Act (Act) (820 ILCS 305/1 et seq. (West 2004)) in effect for injuries prior to February 1, 2006, did not contemplate an award for “temporary partial disability.”¹ Nascote Industries, 353 Ill. App. 3d at 1074. Yet we concluded that an injured worker who had not yet reached MMI and was working part-time within his or her restrictions might be entitled to maintenance benefits. Nascote Industries, 353 Ill. App. 3d at 1074-75.

As noted above, we were advised in this case that claimant was receiving benefits from respondent’s insurance carrier, notwithstanding the fact that he was working in a light-duty capacity. An individual who is working is not entitled to TTD benefits. See Pietrzak v. Industrial Comm’n, 329 Ill. App. 3d 828, 832 (2002) (stating that to establish entitlement to TTD benefits, an employee must show not only that he did not work, but that he was unable to work). Moreover, claimant’s injury occurred on July 2, 2003, prior to the date upon which an injury must occur to be eligible for temporary partial disability benefits. Thus, if, as we were informed, claimant was receiving benefits from respondent’s insurance carrier, the benefits could only have been paid as maintenance. Maintenance is awarded incidental to vocational rehabilitation. 820 ILCS 305/8(a) (West 2004) (“The employer shall also pay for treatment, instruction and training necessary for the physical, mental and vocational rehabilitation of the employee, including maintenance costs and expenses incidental thereto”). In Nascote Industries, we concluded that part-time employment within the restrictions authorized by a claimant’s doctor can be classified as a physician-approved rehabilitation plan. Nascote Industries, 353 Ill. App. 3d at 1075. As discussed earlier in this disposition, Illinois courts have held that the absence of good faith in cooperating with vocational rehabilitation efforts justifies the termination of TTD benefits. See, e.g., Hayden, 214 Ill. App. 3d at 756. If the failure to cooperate with a rehabilitation plan provides a basis for disallowing future TTD benefits, it follows that being fired for cause from part-time employment also provides a basis for terminating any maintenance benefit that an employee might have been receiving incidental to that part-time employment. Accordingly, aside from our holding that claimant is not entitled to TTD benefits, we also find that claimant is no longer entitled to collect the portion of the maintenance benefit paid by respondent’s insurance carrier.

III. CONCLUSION

For the foregoing reasons, we reverse the judgment of the circuit court of Will County, which confirmed the decision of the Commission. We remand the matter to the Commission for further proceedings pursuant to Thomas, 78 Ill. 2d 327.

Reversed and remanded.

McCULLOUGH, EJ., and HOFFMAN, J., concur.

1 The Act now provides for an award of temporary partial disability benefits for accidental injuries occurring on or after February 1, 2006. See Pub. Act 94 — 0277, eff. July 20, 2005 (amending 820 ILCS 305/8(a)).