WCLA MCLE

1. WCLA MCLE • Retirement: Does It Affect Workers’ Compensation Benefits? • Wednesday November 3, 2010 • 12:00 pm to 1:00 pm • James R. Thompson Center Auditorium, Chicago, IL • 1 Hour General MCLE Credit

2. Issues • How does retirement affect entitlement to WC benefits, if at all? TTD? Wage-differential? Permanent Total? • What does Gill v. Meany hold? Per Se rule? • Can Gill reconciled with Interstate Scaffolding? • 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 4th day of such temporary total incapacity and continuing as long as the total temporary incapacity lasts.” 805 ILCS 305/8(b)

3. Appellate Court Cases • Gallentine, 201 Ill.App.3d 880 (1990): Petitioner who failed to report for light-duty isnot entitled to TTD; “Following the receipt of the above letter reports, the respondent attempted to provide the claimant with the job of cashier, which position appeared to be within her work restrictions….The only evidence offered by the claimant that she could not work after August 24, 1987, when she worked for 1 1/2 hours, was her uncorroborated testimony… Therefore, there was sufficient evidence to support the Commission's determination that the claimant was able to return to work as of August 21, 1987, and that the claimant was not entitled to TTD after this date.”

4. Appellate Court Cases • Schmidgall, 268 Ill.App.3d 845 (1994): Receipt of Social Security retirement benefits does not automatically terminate TTD: “Here, the Commission concluded claimant was automatically precluded from receiving temporary total disability benefits once he began receiving social security benefits …Claimant asserts he did not remove himself from the work force; he physically was not able to work. He further points out a recipient of social security retirement benefits is not required to remove himself from the work  …Employer, on the other hand, asserts claimant could have performed sedentary work, and by accepting retirement   benefits, the Commission logically could infer claimant had no intention of ever seeking employment. There is no clear-cut answer to this question. …Claimant had not removed himself from the work force; his doctor had. The issue of whether claimant desired to work is relevant only if claimant is physically able to work. The mere fact that claimant began receiving social security benefits some two months later does not mean claimant had been released to return to work. Clearly a recipient of social security retirement benefits is not required to remove himself from the work force in order to receive benefits. …We simply cannot accept the determination that receipt of social security retirement benefits automatically terminates a claimant's entitlement to temporary total disability benefits, especially when that claimant is still temporarily totally disabled. (See also Old Ben Coal Co. (1994), 261 Ill. App. 3d 812, …no per se rule that retired person is not entitled to permanent total disability benefits). Accordingly, we reverse the termination of temporary total disability benefits as of the date claimant began receiving social security retirement benefits …”

5. Appellate Court Cases • City of Granite City, 279 Ill.App.3d 1087 (1996): Petitioner police officer is not entitled to TTD after removing himself from light-duty in order to collect a disability pension:”The duration of TTD is controlled by the claimant's ability to work and his continuation in the healing process. To show entitlement to TTD benefits, claimant must prove not only that he did not work, but that he was unable to work. …In this case there is no medical evidence that claimant could not return to light-duty work. The Commission did not decide that, as a matter of policy, a person is not simultaneously entitled to workers' compensation benefits and disability pension benefits under a statutorily created pension fund. The claimant did not present any evidence to show that his injury was not stabilized or that he could not perform light-duty work. The parties, the arbitrator, and the Commission became consumed with claimant's application for a disability pension, his eligibility to stay in the pension system if he was disabled and on light duty, and his retirement. These may be proper considerations in a permanent disability setting. However, there is a distinction between when an officer is entitled to a pension and whether the officer is entitled to TTD. The claimant was given light duty. He does not argue that his injury was not stabilized, that he was not released for light duty, or that he could not physically perform the light-duty assignment. Although the pension board may have eventually sought claimant's termination as a police officer, claimant was not entitled to anticipate that action by the board, terminate his employment when light-duty work was available to him, and still collect TTD benefits. The Commission's decision was not against the manifest weight of the evidence.”

6. Interstate Scaffolding236 Ill.2d 132 (2010) • “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.”

7. IWCC Decisions • Schereck v. MWRDGC, 10 IWCC 0834: Petitioner returns to work full duty and retires about 1 year later; Commission affirms 25% loss of use of MAW despite Petitioner’s review • Dulakis v. State, 10 IWCC 0733: “Petitioner voluntarily retired therefore removing himself from the workforce on his own initiative. Petitioner’s job search did not begin until almost 3 years after his effective retirment. Therefore, the Arbitrator finds that Petitioner is not entitled to additional TTD.” Commission affirms (but also 40% MAW for knee)

8. IWCC Decisions • Aragon v. UI Hospital, 10 IWCC 0507: “Petitioner chose to stay off work and continue to receive her benefits from SERS. Therefore, the Arbitrator concludes that Petitioner took herself out of the job market and chose to no longer work. Based on the foregoing, the Arbitrator concludes that the Petitioner is not entitled to permanency benefits as a permanent total or for a wage differential; rather she is entitled to benefits for partial loss of use of her bilateral hands (R25%; L22.5%)…Upon her release Dr. Fernandez imposed permanent restrictions on Petitioner. Petitioner chose to retire on her SERS benefits.” Commission affirms? (1 concurrence & dissent; 1 dissent)

9. IWCC Decisions • Evans v. Chicago Bridge, 10 IWCC 0464: “The Arbitrator finds that the Petitioner voluntarily retired from the workforce in February 2007 and, therefore, is not entitled to TTD benefits beyond his retirement date. The credible evidence demonstrates Petitioner was asked to continue working in a supervisory capacity within his restrictions.” • But, Commission modifies: “The Arbitrator declined to award temporary total disability benefits because he viewed Petitioner as having voluntarily retired in February of 2007. The Commission views the evidence somewhat differently and disagrees with the Arbitrator's assessment of Petitioner's credibility. While it appears that Petitioner (who had worked for Respondent for 27 years) began to plan his retirement in December of 2006 and started putting that plan into action in mid-January 2007, as evidenced by the pension request form in evidence (RX 1), he did not decline Respondent's operations manager's subsequent offer … Petitioner last worked for Respondent on February 22, 2007 but, in the Commission's view, was willing to work an additional two weeks. The Commission also notes that Petitioner was still subject to Dr. Cisneros' restrictions …and that the doctor did not release him to full duty until April 12, 2007. Based on this evidence … the Commission modifies the Decision of the Arbitrator by awarding temporary total disability benefits…from February 23, 2007 through March 8, 2007, a period of two weeks.”

10. Michael Gill v. Meany, Inc.09WC24525; 10 IWCC 0935 • DA 6-19-07 • Petitioner was 60 year old union electrician, more or less permanently assigned to World’s Finest Chocolates • Pulling injury to left shoulder; treated by Dr. Thometz; SX 10-25-07 • Off work 8-07 to 6-08 (full duty by Dr. Thometz); all TTD paid • Resumes treatment with Dr. Thometz 2-09 • Petitioner retires 5-29-09 after turning 62 years old (retirement had been discussed with Respondent as early as 2-09) • Petitioner files Application 6-10-09 • 6-25-09: Petitioner sees Dr. Thometz, “still not capable of regular work” • 8-19-09: IME Dr. Sagerman, “did not get worse between 5-29-09 and 6-25-09;” but not at MMI • Respondent authorizes additional treatment, including surgery, and voluntarily pays TTD after surgery date (still?)

11. Michael Gill v. Meany, Inc.09WC24525; 10 IWCC 0935 • Arbitrator Brian Cronin • Two 19(b)’s tried 9-10-09 & 11-9-09; Elmhurst-Chicago Stone, 269 Ill.App.3d 902 (1995) • Decision 12-10-09: “Based upon the foregoing, the Arbitrator finds that on May 29, 2009, while employed in a light-duty position, Petitioner chose to retire. By doing so, he removed himself from the workforce. Therefore, the Arbitrator concludes, he is not entitled to further TTD benefits from 6/25/09-9/10/09. Please see City of Granite City” • Decision 1-6-09: “defers to his findings of fact and conclusions of law in the first 19(b) decision…denies TTD benefits”

12. Michael Gill v. Meany, Inc.09WC24525; 10 IWCC 0935 • IWCC Decision, 9-24-10 (Lindsay & Donohoo): Consolidated reviews • “The Arbitrator denied Petitioner’s claims for additional temporary total disability benefits, concluding that Petitioner removed himself from the workforce when he voluntarily retired on May 29, 2009.” • “Additional facts”: Petitioner’s actions relating to pension in early 2009; RTW full duty • Decision of the Arbitrator is “clarified, corrected and otherwise affirmed and adopted.”

13. Michael Gill v. Meany, Inc.09WC24525; 10 IWCC 0935 • Dissent (Mason): Denial of additional TTD is “contrary to the evidence and controlling law” • “Full time” does not equal “full duty” • Petitioner based his retirement decision “at least in part, on his ongoing shoulder complaints” • After 6-25-09 when Dr. Thometz took Petitioner off work altogether, his “retirement related activities became irrelevant because he was no longer physically capable of working in any capacity.” • Cites Schmidgall & Interstate Scaffolding • “He was also not at maximum medical improvement…”

14. Issues/Questions • Is there a per se retirement rule? • Does it make any difference if Petitioner retires while working or retires while not working? • How does Interstate Scaffolding’s “determinative inquiry” standard apply? • Can a Petitioner go into and out of MMI? See 19(h) cases Poore, 298 Ill.App.3d 719 (1998); World Color Press, 249 Ill.App.3d 105 (1993)