Interstate Scaffolding v. Workers' Comp.

• Decision Date: 20 October 2008
• Docket Number: No. 3-07-0801 WC.,3-07-0801 WC.
• Citation: 896 N.E.2d 1132
• Parties: INTERSTATE SCAFFOLDING, INC., Appellant, v. THE WORKERS' COMPENSATION COMMISSION, et al. (Jeff Urban, Appellee).
• Court: United States Appellate Court of Illinois

896 N.E.2d 1132

INTERSTATE SCAFFOLDING, INC., Appellant, v. THE WORKERS' COMPENSATION COMMISSION, et al. (Jeff Urban, Appellee).

No. 3-07-0801 WC.

Appellate Court of Illinois, Third District, Workers' Compensation Commission Division.

October 20, 2008.

Rehearing Denied December 2, 2008.

Anthony J. Cacchillo, William J. Cook & Associates, Chicago, IL, for Appellant.

Patrick Serowka, Mitchell W. Horwitz, Horwitz, Horwitz & Associates, Ltd., Chicago, IL, for Appellee.

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, 35 Ill.Dec. 794, 399 N.E.2d 1322 (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, 310 Ill.Dec. 18, 865 N.E.2d 342 (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, 259 Ill.Dec. 173, 758 N.E.2d 18 (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, 296 Ill.Dec. 26, 834 N.E.2d 583 (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, 251 Ill.Dec. 966, 741 N.E.2d 1144 (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, 289 Ill.Dec. 794, 820 N.E.2d 570 (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, 245 Ill.Dec. 759, 728 N.E.2d 841 (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, 259 Ill.Dec. 173, 758 N.E.2d 18.

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, 221 Ill.Dec. 373, 675 N.E.2d 280 (1997) (failure to cooperate); Hayden v. Industrial Comm'n, 214 Ill. App.3d 749, 755-56, 158 Ill.Dec. 305, 574 N.E.2d 99 (1991) (same); Gallentine v....