Appellate Court Finds the Petitioner Who Was Terminated for Cause Not Entitled to TTD
The 3rd District recently held that a respondent does not owe TTD to a petitioner where the petitioner voluntarily removes himself from the workforce for reasons unrelated to his work injury. Interstate Scaffolding v. Workers Compensation Commission 385 Ill.App.3d 1040 (3rd Dist 2008). In this case, respondent was accommodating petitioner’s light duty restrictions. While on light duty, petitioner defaced company property having written religious messages on walls. He was terminated. The Commission found the respondent owed petitioner TTD benefits. The Appellate Court reversed noting that it would provide a windfall to a petitioner to award TTD benefits when it was his volitional conduct, unrelated to his injury, that removed him from the workforce.
Respondent had cited several cases where TTD had been denied by the Court. Those cases involved a denial of TTD following a petitioner’s refusal to accept light duty work or to participate in a vocational rehabilitation program. The Court felt these cases were not directly on point. Those cases involved a petitioner’s refusal to demonstrate effort in returning to the workforce. The Court chose to examine decisions where petitioner voluntarily took himself out of the workforce.. For example, in Granite City v. Industrial Commission 2790 Ill.App3d 1087 (1996), TTD benefits were denied when it was determined that petitioner left his light duty job to collect a pension. However, a different results was reached in Schmidgall v. Industrial Commission 268 Ill. App.3d 845 (1994), wherein TTD benefits were awarded even though petitioner had began accepting Social Security disability benefits. The Employer had suggested that by accepting these benefits petitioner had taken himself out of the work force.
The Court found these cases instructive, but they still did not go far enough. The Court looked outside of Illinois to determine what to do in the event a petitioner engaged in misconduct while on light duty. The Court noted that some jurisdictions hold that disability benefits will be denied in those circumstances where a petitioner is discharged for misconduct and the termination is unrelated to the injury. Other jurisdictions hold that a petitioner’s discharge for misconduct while on light duty does not automatically bar his claim for benefits. Instead, benefits will be awarded if the petitioner can demonstrate that his disability prevents him from obtaining new or alternative employment. The Court chose to follow those jurisdictions that deny benefits following a termination for misconduct where the termination had nothing to with petitioner’s injury. In other words, the inquiry focuses on the reason the employee was removed from the work force. It is not necessary to make the additional inquiry whether petitioner’s work related disability subsequently prevents him from obtaining a new job.
This is a good decision for employers. It allows for freedom to terminate those employees who engage in misconduct and violate company policy even though they may be on light duty. Each situation must be approached on a case by case basis. Certainly, any termination for cause must be justified and well documented. This decision provides employers cover to terminate those employees who might purposefully engage in misconduct while on light duty believing that such status protects them from appropriate adverse employment action.
Issues for determination in later cases remain. What happens when a employee is terminated for cause while on light duty and subsequently becomes restricted from all work? How will the court treat those terminations where an employee is terminated for exceeding a number of allowable absences, but the absence occurred on account of his work related disability? Such a situation could arise where the employee misses one day of light duty work because of complaints of pain, but fails to secure a doctor’s note for the absence. Indeed, another question will be was this a “termination for cause”? This is an issue that will continue to evolve.
Originally published in the Spring 2009 edition of Quinn Quarterly.