WORKERS COMPENSATION BENEFITS/LEAVE ISSUES EMPLOYMENT LAW / WORKERS COMPENSATION SEMINAR

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1 WORKERS COMPENSATION BENEFITS/LEAVE ISSUES PEORIA COUNTY BAR ASSOCIATION CONTINUING LEGAL EDUCATION EMPLOYMENT LAW / WORKERS COMPENSATION SEMINAR January 9, 2016 Prepared and Presented by Vincent M. Boyle Heyl Royster 300 Hamilton Blvd. Peoria, IL

2 WORKERS COMPENSATION LEAVE ISSUES I. INTERIM BENEFITS WHILE OFF WORK Under the Illinois Workers Compensation Act, an employee with a work related injury is entitled to a number of benefits. These benefits include payment of all reasonable and necessary medical expenses, compensation for lost time, and payment for permanent disability associated with the accidental injury or occupational disease. With regard to compensation for lost time, an employee who loses time from work as a result of a compensable injury is entitled to temporary total disability (TTD) benefits, temporary partial disability (TPD) benefits, and/or vocational rehabilitation and related maintenance benefits. II. TEMPORARY TOTAL DISABILITY BENEFITS Section 8(b) of the Illinois Workers Compensation Act provides that an employee who sustains a compensable work-related injury is entitled to TTD benefits, which are defined as: The period of temporary total incapacity is that temporary period immediately after the accident during which the injured employee is totally incapacitated for work by reason of the illness attending the injury. It might be described as the period of the healing process. Temporary, as distinguished from permanent, disability is a condition that exists until the injured workman is as far restored as the permanent character of the injuries will permit. Mt. Olive Coal Co. v. Industrial Commission, 295 III. 429, 129 N.E. 103, 104 (1920). Accordingly, benefits are to be paid to an injured employee for such a period of time during which he or she is temporarily unable to return to any work, or is released to do light-duty work, but the employer is unable to accommodate the light-duty work restrictions. If an employer has work available within the restrictions and offers it to the employee, the employer is no longer obligated to pay TTD benefits. Section 8(b) also addresses payment and calculation of TTD benefits. Payment begins after a waiting period of three working days and is paid until the employee returns to work or reaches maximum medical improvement. If the employee misses 14 or more calendar days due to the injury, the employer is liable for payment beginning on the first day of the disability. TTD benefits are paid at the rate of 2/3 of the employee s average weekly wage, subject to certain statutory minimum and maximum rates. The statutory minimum rates are dependent on the employee s marital status and number of dependent children, but may not exceed the employee s average weekly wage. The statutory maximum rates are capped at 2/3 of the employee s average weekly wage or 133 1/3 percent of the state s average weekly wage. These rates are updated every six months and can be found on the Illinois Workers Compensation Commission website.

3 A. OBLIGATION TO EMPLOYEES TERMINATED FOR CAUSE The Appellate Court, Workers Compensation Commission Division, interpreted the Supreme Court s holding in Interstate Scaffolding, Inc. v. Illinois Workers Compensation Comm n, 236 Ill. 2d 132, 142 (2010), which held than an employer s obligation to pay TTD benefits did not cease when the employee was discharged for misconduct unrelated to the injury. In a recent case, the court held Interstate Scaffolding applies to termination for cause and continues obligation to pay benefits. In Matuszczak V. Illinois Workers Compensation Comm n, 2014 IL App (2d) WC, the employee s injuries were found compensable and benefits were awarded by the arbitrator, including TTD benefits. The Commission affirmed the findings, but terminated ltd benefits as of the date the employee was terminated from employment for having committed a work-place theft. According to the record, at the time he was terminated, the employee prepared a handwritten statement acknowledging he stole cigarettes from the employer a week prior (but after the work accident) and that he understood stealing was a crime that could result in his termination from work. The appellate court reversed the Commission s findings on TTD benefits, holding that under the Illinois Supreme Court s ruling in Interstate Scaffolding, the sole question was whether the employee had reached maximum medical improvement. The fact the employee had been terminated, even for cause, was irrelevant, and could not serve to end the employer s obligation to pay TTD benefits. The appellate court further held that the Commission erred in concluding that the voluntary act of theft, knowing that he might be terminated, was a refusal to perform light-duty work, which he was doing at the time of the theft. B. OBLIGATION TO UNDOCUMENTED/ILLEGAL WORKERS The Commission in Rosas v. GM Warehouse, Inc., 10 IL.W.C, 22555, 12 I.W.C.C (Apr. 23, 2012), held that an illegal alien, who could not return to work for his former employer because he is prohibited from working by federal law, was nevertheless entitled to receive continued TTD benefits the same as a worker on restrictions who is discharged for cause. According to the Commission, the employee was allegedly terminated because he was unable to provide a valid social security number. If [the employee] did not have a valid social security number, his continued employment... by Respondent would be a violation [of] 8 U.S.C.S, 24a(a)(2). Rosas, 12 I.W.C.C. 0419, at *14. The Commission rejected the argument by the employer that there was a valid reason for discharge, namely, the employee s inability to be employed due to federal law, noting, the reasoning for [the employee s] discharge is immaterial to the issue at hand. The only material question is whether [he] was at MMI. that [the employee] was not at MMI.... Id. It is clear from the medical records... and respondent s Section 12 report

4 III. TOTAL PARTIAL DISABILITY BENEFITS Employees are entitled to TPD benefits when they return to work on a light duty basis and earn less than they would in the full performance of their duties. 820 ILCS 305/8(a). Section 8(a) of the Illinois Workers Compensation Act, 820 ILCS 305/1, etseq., provides: 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 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 the accident and the gross 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. 820 ILCS 305/8(a). These benefits were created by an amendment to the Illinois Workers Compensation Act that was effective on February 1, 2006, and only applies to cases with an accident date on or after February 1, TPD benefits are paid until an employee returns to his or her regular job or reaches maximum medical improvement. A. CALCULATING TPD BENEFITS NET vs. GROSS As indicated in Section 8(a), the current calculation of TPD benefits is two thirds of the different between the average amount an employee would be able to earn in the pre-injury job and the gross amount he or she earns in the light duty job. This applies to injuries occurring after June 28, For injuries that occurred before June 28, 2011, TPD benefits are calculated based on the net amount the employee earns in the light-duty job. IV. TEMPORARY TRANSITIONAL EMPLOYMENT In an effort to return employees to work when they are medically cleared to do so in any capacity, employers have been using temporary transitional employment (HE). Often called modified duty offsite or simply off-site return to work programs, these programs typically use a third party vendor to locate temporary employment for the employee when their work restrictions cannot be accommodated by their employer. These programs come into play when: (1) the employee is first released to return to work with some restriction but is still actively receiving treatment, and, (2) upon completing treatment, when the employee is released to return to work with permanent restrictions. In both instances, the employer cannot accommodate the employee s restrictions.

5 The offer of temporary employment must be a bonafide job offer. An arbitrator recently discredited a temporary employment position, determined it was not a bona fide offer, and awarded benefits by finding that the transitional employment position was not a competitive job. In so finding, the arbitrator noted that the employee did not do anything to secure the position. Although the employee was interviewed for the position, the temporary employer was paid to conduct the interview and received a fee from the employer to accommodate the employee.

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