Illinois Appellate Decision Sets Precedent on TTD After Termination Before MMI

In Holocker v IWCC, which officially came out yesterday, EE sustained a compensable work injury while operating a crane. He was a transportation operator in a manufacturing facility in Peoria. See relevant facts below:

1. After a period of being off work, he returned to work and requested no assignments involving any crane duties, employer accommodated this request.
2. Eventually, he was required to operate a crane on two or three occasions. When he did, he developed anxiety and went to the ER where he was diagnosed with anxiety attack and placed off work.
3. PCP prescribed anxiety medication and recommended EE be placed on another job while he adjusted to medication. Employer offered EE a full time janitorial position which would not require any crane use. EE declined and continued to work as a transportation operator; however, he was not required to operate cranes.
4. Thereafter, EE went on vacation and, upon returning, missed three consecutive days with no call, no show. Per the CBA, he was terminated.
5. At the time of termination, EE was still treating for work injuries, including undergoing dental surgery which was work related. EE was placed off post-surgery.
6. TTD was terminated upon EE’s termination from employment.
7. EE underwent  psych IME that opined anxiety was work related, EE is able to perform all his job duties with restriction of no crane use for 6 months.
8. R secured voc opinion that found EE’s restriction of no crane use did not prohibit EE from reentering work force. Per Labor Market Survey, various employers where hiring positions that fit EE qualifications and restriction.
9. HR witness testified that EE position as an transportation operator with no crane use was a permanent position.

Arbitrator: Awarded TTD, found R owed benefits after EE was terminated as EE was not at MMI for the work injury at the time of the employment termination.

Commission: Reversed Arb, denied TTD, stating that when analyzing whether TTD is owed, while MMI should be considered, MMI is NOT the sole determinative factor. Analysis should also consider whether the employee is capable of returning to the work force.

Appellate Court: Agreed with the Commission. The Court found the following facts significant:

EE was released to full duty with one restriction of no crane use;

EE continued to work full duty as a transportation operator without being required to operate a crane;

It was not necessary for the employer to either modify an existing job or create a “light duty” position as a certain percentage of transportation operaters never used a crane;

Voc counselor found that the no crane use restriction did not preclude EE from reentering the work force.

The Appellate Court distinguished the instant case from both Interstate Scaffolding and Matuszcak in that in those cases, P was working light duty at the time of termination; therefore, unable to perform the pre-injury job. In the instant case, EE was working full time and full duty in his original job classification prior to the termination.

*** The Court states that the proper analysis when determining whether TTD is owed: (1) has the condition stabilized; AND (2) whether EE is capable of returning to the work force.

Take Away: When an EE is working regular duty, but still treating for work injury (i.e. not at MMI), gets terminated, we have basis to deny TTD based upon this case. I have always taken that position; however, there wasn’t a case on point. Now there is. In the alternative, if EE has a work restriction that the employer is accommodating on a permanent basis, EE is not at MMI, gets terminated, we can dispute TTD. The argument that we owe TTD so long as EE is not at MMI, is no longer the law. MMI is only one part of the analysis, we must also consider whether EE is capable of returning to the work force.

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