WCLA MCLE
• Retirement: Does It Affect Workers’
Compensation Benefits?
• Wednesday November 3, 2010
• 12:00 pm to 1:00 pm
• James R. Thompson Center Auditorium,
Chicago, IL
• 1 Hour General MCLE Credit
Issues
• How does retirement affect entitlement to WC
benefits, if at all? TTD? Wage-differential?
Permanent Total?
• What does Gill v. Meany hold? Per Se rule?
• Can Gill reconciled with Interstate Scaffolding?
• Statute: “If the period of temporary total incapacity
for work lasts more than 3 working days, weekly
compensation as hereinafter provided shall be paid
beginning on the 4th day of such temporary total
incapacity and continuing as long as the total
temporary incapacity lasts.” 805 ILCS 305/8(b)
Appellate Court Cases
• Gallentine, 201 Ill.App.3d 880 (1990):
Petitioner who failed to report for light-duty is
not entitled to TTD; “Following the receipt of the
above letter reports, the respondent attempted to provide
the claimant with the job of cashier, which position appeared
to be within her work restrictions….The only evidence offered
by the claimant that she could not work after August 24,
1987, when she worked for 1 1/2 hours, was her
uncorroborated testimony… Therefore, there was sufficient
evidence to support the Commission's determination that the
claimant was able to return to work as of August 21, 1987,
and that the claimant was not entitled to TTD after this date.”
Appellate Court Cases
• Schmidgall, 268 Ill.App.3d 845 (1994): Receipt of Social Security
retirement benefits does not automatically terminate TTD:
“Here, the
Commission concluded claimant was automatically precluded from receiving temporary total disability
benefits once he began receiving social security benefits …Claimant asserts he did not remove himself
from the work force; he physically was not able to work. He further points out a recipient of social security
retirement benefits is not required to remove himself from the work …Employer, on the other hand,
asserts claimant could have performed sedentary work, and by accepting retirement benefits, the
Commission logically could infer claimant had no intention of ever seeking employment. There is no clearcut answer to this question. …Claimant had not removed himself from the work force; his doctor had. The
issue of whether claimant desired to work is relevant only if claimant is physically able to work. The mere
fact that claimant began receiving social security benefits some two months later does not mean claimant
had been released to return to work. Clearly a recipient of social security retirement benefits is not
required to remove himself from the work force in order to receive benefits. …We simply cannot accept
the determination that receipt of social security retirement benefits automatically terminates a claimant's
entitlement to temporary total disability benefits, especially when that claimant is still temporarily totally
disabled. (See also Old Ben Coal Co. (1994), 261 Ill. App. 3d 812, …no per se rule that retired person is not
entitled to permanent total disability benefits). Accordingly, we reverse the termination of temporary total
disability benefits as of the date claimant began receiving social security retirement benefits …”
Appellate Court Cases
• City of Granite City, 279 Ill.App.3d 1087 (1996): Petitioner police officer is
not entitled to TTD after removing himself from light-duty in order to
collect a disability pension:”The duration of TTD is controlled by the claimant's ability to work
and his continuation in the healing process. To show entitlement to TTD benefits, claimant must prove not
only that he did not work, but that he was unable to work. …In this case there is no medical evidence that
claimant could not return to light-duty work. The Commission did not decide that, as a matter of policy, a
person is not simultaneously entitled to workers' compensation benefits and disability pension benefits
under a statutorily created pension fund. The claimant did not present any evidence to show that his
injury was not stabilized or that he could not perform light-duty work. The parties, the arbitrator, and the
Commission became consumed with claimant's application for a disability pension, his eligibility to stay in
the pension system if he was disabled and on light duty, and his retirement. These may be proper
considerations in a permanent disability setting. However, there is a distinction between when an officer is
entitled to a pension and whether the officer is entitled to TTD. The claimant was given light duty. He does
not argue that his injury was not stabilized, that he was not released for light duty, or that he could not
physically perform the light-duty assignment. Although the pension board may have eventually sought
claimant's termination as a police officer, claimant was not entitled to anticipate that action by the board,
terminate his employment when light-duty work was available to him, and still collect TTD benefits. The
Commission's decision was not against the manifest weight of the evidence.”
Interstate Scaffolding
236 Ill.2d 132 (2010)
• “For the reasons stated above, we hold that an employer’s
obligation to pay TTD benefits to an injured employee does
not cease because the employee had been discharged–
whether or not the discharge was for ‘cause.’ When an injured
employee has been discharged by his employer, the
determinative inquiry for deciding entitlement to TTD
benefits remains, as always, whether the claimant’s condition
has stabilized. If the injured employee is able to show that he
continues to be temporarily totally disabled as a result of his
work-related injury, the employee is entitled to TTD benefits.”
IWCC Decisions
• Schereck v. MWRDGC, 10 IWCC 0834: Petitioner
returns to work full duty and retires about 1 year
later; Commission affirms 25% loss of use of MAW
despite Petitioner’s review
• Dulakis v. State, 10 IWCC 0733: “Petitioner
voluntarily retired therefore removing himself from
the workforce on his own initiative. Petitioner’s job
search did not begin until almost 3 years after his
effective retirment. Therefore, the Arbitrator finds
that Petitioner is not entitled to additional TTD.”
Commission affirms (but also 40% MAW for knee)
IWCC Decisions
• Aragon v. UI Hospital, 10 IWCC 0507: “Petitioner chose to stay
off work and continue to receive her benefits from SERS.
Therefore, the Arbitrator concludes that Petitioner took
herself out of the job market and chose to no longer work.
Based on the foregoing, the Arbitrator concludes that the
Petitioner is not entitled to permanency benefits as a
permanent total or for a wage differential; rather she is
entitled to benefits for partial loss of use of her bilateral
hands (R25%; L22.5%)…Upon her release Dr. Fernandez
imposed permanent restrictions on Petitioner. Petitioner
chose to retire on her SERS benefits.” Commission affirms? (1
concurrence & dissent; 1 dissent)
IWCC Decisions
• Evans v. Chicago Bridge, 10 IWCC 0464
•
: “The Arbitrator finds that the Petitioner
voluntarily retired from the workforce in February 2007 and, therefore, is not entitled to TTD
benefits beyond his retirement date. The credible evidence demonstrates Petitioner was
asked to continue working in a supervisory capacity within his restrictions.”
But, Commission modifies: “The Arbitrator declined to award temporary total disability
benefits because he viewed Petitioner as having voluntarily retired in February of 2007. The
Commission views the evidence somewhat differently and disagrees with the Arbitrator's
assessment of Petitioner's credibility. While it appears that Petitioner (who had worked for
Respondent for 27 years) began to plan his retirement in December of 2006 and started
putting that plan into action in mid-January 2007, as evidenced by the pension request form
in evidence (RX 1), he did not decline Respondent's operations manager's subsequent offer …
Petitioner last worked for Respondent on February 22, 2007 but, in the Commission's view,
was willing to work an additional two weeks. The Commission also notes that Petitioner was
still subject to Dr. Cisneros' restrictions …and that the doctor did not release him to full duty
until April 12, 2007. Based on this evidence … the Commission modifies the Decision of the
Arbitrator by awarding temporary total disability benefits…from February 23, 2007 through
March 8, 2007, a period of two weeks.”
Michael Gill v. Meany, Inc.
09WC24525; 10 IWCC 0935
• DA 6-19-07
• Petitioner was 60 year old union electrician, more or less permanently
assigned to World’s Finest Chocolates
• Pulling injury to left shoulder; treated by Dr. Thometz; SX 10-25-07
• Off work 8-07 to 6-08 (full duty by Dr. Thometz); all TTD paid
• Resumes treatment with Dr. Thometz 2-09
• Petitioner retires 5-29-09 after turning 62 years old (retirement had been
discussed with Respondent as early as 2-09)
• Petitioner files Application 6-10-09
• 6-25-09: Petitioner sees Dr. Thometz, “still not capable of regular work”
• 8-19-09: IME Dr. Sagerman, “did not get worse between 5-29-09 and
6-25-09;” but not at MMI
• Respondent authorizes additional treatment, including surgery, and
voluntarily pays TTD after surgery date (still?)
Michael Gill v. Meany, Inc.
09WC24525; 10 IWCC 0935
• Arbitrator Brian Cronin
• Two 19(b)’s tried 9-10-09 & 11-9-09; Elmhurst-Chicago Stone,
269 Ill.App.3d 902 (1995)
• Decision 12-10-09: “Based upon the foregoing, the Arbitrator
finds that on May 29, 2009, while employed in a light-duty
position, Petitioner chose to retire. By doing so, he removed
himself from the workforce. Therefore, the Arbitrator
concludes, he is not entitled to further TTD benefits from
6/25/09-9/10/09. Please see City of Granite City”
• Decision 1-6-09: “defers to his findings of fact and conclusions
of law in the first 19(b) decision…denies TTD benefits”
Michael Gill v. Meany, Inc.
09WC24525; 10 IWCC 0935
• IWCC Decision, 9-24-10 (Lindsay & Donohoo):
Consolidated reviews
• “The Arbitrator denied Petitioner’s claims for
additional temporary total disability benefits,
concluding that Petitioner removed himself from the
workforce when he voluntarily retired on May 29,
2009.”
• “Additional facts”: Petitioner’s actions relating to
pension in early 2009; RTW full duty
• Decision of the Arbitrator is “clarified, corrected and
otherwise affirmed and adopted.”
Michael Gill v. Meany, Inc.
09WC24525; 10 IWCC 0935
• Dissent (Mason): Denial of additional TTD is “contrary to the
evidence and controlling law”
• “Full time” does not equal “full duty”
• Petitioner based his retirement decision “at least in part, on
his ongoing shoulder complaints”
• After 6-25-09 when Dr. Thometz took Petitioner off work
altogether, his “retirement related activities became
irrelevant because he was no longer physically capable of
working in any capacity.”
• Cites Schmidgall & Interstate Scaffolding
• “He was also not at maximum medical improvement…”
Issues/Questions
• Is there a per se retirement rule?
• Does it make any difference if Petitioner
retires while working or retires while not
working?
• How does Interstate Scaffolding’s
“determinative inquiry” standard apply?
• Can a Petitioner go into and out of MMI? See
19(h) cases Poore, 298 Ill.App.3d 719 (1998);
World Color Press, 249 Ill.App.3d 105 (1993)