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workers compensation lawyers association mcle

What's the Issue?. Is Petitioner entitled to TTD after being terminated from employment?Statute:

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workers compensation lawyers association mcle

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    1. Workers’ Compensation Lawyers AssociationMCLE Interstate Scaffolding: Cutting Off Benefits After Termination for Cause Anthony J. Cacchillo for Respondent Marc A. Perper for Petitioner Thursday, November 13, 2008 Chicago, IL 1 hour general MCLE credit

    3. TTD Background Cases Gallentine, 201 Ill.App.3d 880 (1990): Petitioner who failed to report for light-duty is not entitled to TTD Manis, 230 Ill.App.3d 657 (1992): The dispositive test is whether the condition has stabilized because Petitioner is entitled to TTD when a disabling condition is temporary and has not reached a permanent condition Schmidgall, 268 Ill.App.3d 845 (1994): Petitioner is entitled to TTD even though receiving SSD Whitney Productions, 274 Ill.App.3d 28 (1995): Petitioner is entitled to TTD after being laid off for reasons unrelated to his injury

    4. TTD Background 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 Freeman United Coal, 318 Ill.App.3d 170 (2000): “(A)n argument focusing on whether the claimant is available for work in some other capacity and could and should have sought alternative employment misses the mark in TTD cases”; then cites Manis: dispositive test is whether condition has stabilized

    5. “Dispositive” Merriam-Webster's Dictionary of Law Main Entry: dis·pos·i·tivePronunciation: dis-'pä-z&-tivFunction: adjective1 : directed toward or effecting a disposition (as of a case) dispositive…pretrial motions —Robert Shaw-Meadow>2 : relating to a disposition of property <dispositive words in a will>3 : providing a final resolution (as of an issue) : having control over an outcome <dispositive of the question>

    6. TTD Background Cases Mechanical Devices, 344 Ill.App.3d 752 (2003): Petitioner is entitled to TTD even though he was working an average of 15 hours per week because his condition had not stabilized Land and Lakes, 359 Ill.App.3d 582 (2005): Petitioner is entitled to TTD even after he voluntarily retired, distinguishing City of Granite City

    7. Interstate ScaffoldingFacts 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 Respondent terminates Petitioner’s employment on 5-25-05 “for defacing company property”

    8. Interstate ScaffoldingArbitration 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.”

    9. Interstate ScaffoldingCommission 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.”

    10. Interstate ScaffoldingCircuit 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.”

    11. Interstate ScaffoldingAppellate Court 3-2 Decision (Grometer, McCullough, Hoffman) reverses, No. 3-07-0801WC, filed 10-20-08 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

    12. Appellate Court Law applied: “The dispositive issue is whether the claimant’s condition has stabilized, i.e. whether the claimant has reached maximum medical improvement (MMI).” Citing Land & Lakes 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.”

    13. 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?

    14. 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?

    15. 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.”

    16. 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.”

    17. 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”

    18. 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.”

    19. Appellate Court So what was Petitioner getting? Not TTD: “An individual who is working is not entitled to TTD” (Is this unequivocal statement correct?) Not TPD: DA before 2-1-06, so cannot be Temporary Partial disability{see section 8(a)} Maintenance: “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.”

    20. 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.”

    21. Issues Raised by Dissent & Beyond Whose burden? Employer “has the burden” to establish that: a) employee violated a rule; b) employee was fired for violation of the rule; c) the violation would normally result in termination; and d) voluntary act and not related to disability”: Does this mean a reverse 19(b)? What “rules”? Employment at will? Does bar last forever or can it be lifted? Can failure to do something be a “volitional” or “voluntary” act? Negligence? Safety rule? Pre-accident or post-accident rule violation? Res judicata or estoppel issues? Union grievance? Personnel hearing? Unemployment? Other issues?

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