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The Appellate Court of Illinois held that non-mandatory overtime shall not be included in the calculation of a claimant’s average weekly wage (AWW).
Summary: Petitioner was employed as a driver/dock worker who suffered three undisputed compensable injuries in the course of his employment for Respondent. At issue in this case is whether Petitioner’s overtime should have been included in calculating his AWW to determine the proper rate of TTD. The Act explicitly states that overtime is to be excluded in calculating a claimant’s AWW. 820 ILCS 305/10. In this case, Petitioner had worked in 32 of 52 weeks preceding injury, and worked overtime in 31 of those weeks. Petitioner held seniority which allowed him the option to refuse overtime, but he instead chose to work it.
The arbitrator awarded TTD based on an AWW of $901.41. On review the Commission modified the award setting the AWW at $1,246.86, a figure which included Petitioner’s overtime earnings not included in the arbitrator’s award. The appellate court reversed in part the Commission’s decision to include this overtime in Petitioner’s AWW. Noting that the Act fails to define “overtime,” the court looked to previous case law which ultimately includes mandatory overtime in AWW calculation as part of the employment. In this case, however, because Petitioner reserved the option to decline overtime hours, such overtime was considered voluntary and thus was not included in Petitioner’s AWW. Mandatory overtime remains part of AWW calculation.
Brief: The employee sustained a work related injury while working for the employer. The employee was eventually allowed and did in fact return to light duty work for the employer. While working in a light duty capacity, the employee was terminated for defacing company party. At issue, was whether the employee was entitled to the payment of temporary total disability (TTD) or maintenance benefits following his termination. The Arbitrator ruled the employee was not entitled to TTD benefits. The Illinois Workers’ Compensation Commission reversed the decision of the Arbitrator. The Circuit Court of Will County confirmed the Commission’s decision. However, the Appellate Court reversed the Commission’s decision and found that the employee was not entitled to TTD or maintenance benefits after he voluntarily removed himself from the work force for reasons unrelated to his injury.
On July 2, 2003, the employee sustained a work related injury. In February of 2005, the employee began working in a light duty capacity for the employer at one of its facilities. In April of 2005, the employee wrote religious inscriptions with permanent marker on the walls and shelves in a storage room on the employer’s premises. The employee confirmed that the writings did not pertain in anyway to his job duties with the employer and that he did not have permission to write on the walls and shelves. As a result, on May 25, 2005, the employee’s employment was terminated due to defacing company property.
The first issue on appeal was whether the Commission error in awarding the employee TTD benefits following his termination on May 25, 2005. The Appellate Court noted that it was well settled law that an employee seeking TTD benefits must prove not only that he did not work, but that he was unable to work. The dispositive inquiry is whether the employee’s condition has stabilized, i.e., whether the employee has reached maximum medical improvement. Once an injured employee has reached MMI, the disabling condition has become permanent and he is no longer eligible for TTD benefits. The Appellate Court noted that the period for which an employee is temporary totally disabled is a question of fact by the Commission, and its determination will not be disturbed on review unless contrary to the manifest weight of the evidence.
In this case, the Appellate Court stated that the Commission’s finding that the employee was temporary totally disabled at the time of this termination was not against the manifested weight of the evidence. When the employee was terminated, he had not been released to full duty work and had not reached MMI. While the employee was still temporary totally disabled at the time of his termination, the Appellate Court noted that the more interesting aspect of this appeal was whether the employee was entitled to TTD benefits following his discharge from the employer’s employ. The Court noted that neither party provided it with any authority addressing the impact of an employee’s termination on his entitlement to TTD benefits subsequent to the date of dismissal.
In analyzing this issue, the Appellate Court looked to two of its prior cases, City of Granite City v. Industrial Commission and Schmidgall v. Industrial Commission for some guidance. In both cases, the Appellate Court noted the critical inquiry in determining whether the employee is entitled to TTD benefits after leaving the work force centers on whether the departure was voluntary in nature. The Appellate Court also found instructive to its analysis cases from other jurisdictions which address an employee’s entitlement to TTD benefits following its discharge from misconduct. It was noted that some jurisdictions deny compensation to employees who, after resuming employment following a work related injury, are terminated for misconduct where the disability played no party in the discharge. The Appellate Court cited cases from Louisiana, Washington D.C., Mississippi, Michigan, and Virginia. Those Courts reasoned 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. The Michigan Appellate Court defined termination for “just cause” to include only those “voluntary acts of the employee”.
On the contrary, the Appellate Court noted that Courts in other jurisdictions have held that an employee’s discharge from light duty work for misconduct unrelated to the disability does not automatically bar the employee from receiving disability benefits. Those Courts allow the employee to collect benefits when he can establish at the work related disability hampers the employee’s ability to obtain or hold new employment. This position is taken in New Jersey, North Carolina, and Minnesota.
In deciding which approach to apply, the Illinois Appellate Court noted that the overriding purpose of the Illinois workers’ compensation scheme is to compensate an employee for lost injuries “resulting from a work-related disability”. The Court noted that considering this purpose in conjunction with the case law noted above, the Court found that to allow an employee to collect TTD benefits from his employer after he was removed from the work force as a result of the 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 by continuing to compensate the employee despite the fact that the cause of the lost earnings following the employee’s departure was unrelated to the injury. The Court noted that this approach coincides with the approach in Granite City, Schmidgall, and those jurisdictions that deny compensation to employees who are terminated for misconduct in that this approach focuses on the reason the employee was removed from the work force.
In the present case, the Court noted that the employee had been working in a light duty capacity. Furthermore, the employee admitted that he did not have permission from the employer to write on the walls and shelves in the storage room and that the writings did not pertain in any way to his job duties. The Court noted that it found no evidence to suggest the employee was terminated so that the employer could avoid the payment of TTD benefits. It was noted that although some of the employees knew of the employee’s actions weeks before his firing, the president of the company was not aware that the Employee had defaced company property until shortly before the termination. “Simply stated, but for his conduct in defacing respondent’s property, claimant would have continued receiving TTD benefits until his condition had stabilized.” As such, the Appellate Court reversed the decision of the Commission awarding the employee TTD benefits from the employer following his discharge for cause.
The next issue that was addressed by the Appellate Court was whether the employee was entitled to maintenance benefits following his termination. During the oral arguments, the Appellate Court was advised that at the time the employee was employed in the light duty capacity, he was receiving maintenance benefits. The court found the case of Nascote Industries v. Industrial Commission, instructive on this issue.
In Nascote, the claimant returned to part-time work following an injury in which the employer made voluntary payments to the employee. The Arbitrator classified these payments as maintenance and determined that the employer was not entitled to a credit for them against the permanency award. The Commission affirmed the Arbitrator’s decision. On appeal, the Appellate Court acknowledged that the Illinois Workers’ Compensation Act in effect for injuries prior to February 1, 2006 did not contemplate and award for temporary partial disability benefits. Yet, the Court concluded that an injured worker who had not yet reached maximum medical improvement and was working part-time within his or her restrictions might be entitled to maintenance benefits.
The Appellate Court noted that in this case, the employee was receiving maintenance benefits from the employer’s insurance carrier notwithstanding the fact that he was working in a light duty capacity. It was noted that an individual who was working is not entitled to TTD benefits. Moreover, the employee’s injury occurred on July 2, 2003, prior to the date upon which an injury must occur to be eligible for TPD benefits. The Court indicated that if, as they were informed, the employee was receiving benefits from the employer’s insurance carrier, benefits could only have been paid as maintenance which are awarded incidental to vocational rehabilitation.
In Nascote Industries, the Court concluded that part-time employment within the restrictions as authorized by the claimant’s doctor can be classified as a physician approved rehabilitation plan. As discussed earlier in this Court’s disposition, Illinois Courts have upheld that the absence of good faith cooperation with vocational rehabilitation efforts justifies the termination of TTD benefits. The Court went on to statue that if the failure to cooperate with a rehabilitation plan provides a basis for disallowing future TTD benefits, it follows that being fired for cause for part-time employment also provides a basis for terminating any maintenance benefit that an employee may have been receiving incidental to that part-time employment. Accordingly, aside from the Court’s holding that the employee is not entitled to TTD benefits, the Court also found that the employee is no longer entitled to maintenance benefits.
This decision was drafted by Justice Grometer. Presiding Justice McCullough and Justice Hoffman concurred in the decision. Please note, Justice Donovan and Justice Holdridge both joined in a descending opinion.
Summary: The employee bus driver was injured while stooping over to retrieve a transfer book she had dropped. Without striking anything or falling, she felt a pain in her shoulder as she bent over. After going to the emergency room later that evening, it was determined that her shoulder was dislocated and surgery was performed to prevent recurrent dislocations. The shoulder had partially dislocated on previous occasions, and some of the tissue was in a degenerated condition.
The Illinois Supreme Court held that while the incident was traced to a definite time, place, and cause, the evidence was insufficient to support a finding of accidental injury in the absence of any “bumping” of the shoulder. The injury was not compensable because the employment did not subject the employee to a greater risk beyond that faced to the general public. The court reasoned that because of the preexisting condition of her shoulder, the risk of dislocation was personal to her and was not caused by a risk incident to the employment.
Effect: With regard to neutral risk, the question of whether an injury arose out of the employment rests on a determination of whether the employee was exposed to a risk of injury to a greater extent than that to which the general public was exposed.