Illinois: Carpenter Fired for Religious Graffiti Not Entitled to Disability Pay

An Illinois construction worker was working light duty following a legitimate work injury when he was fired for writing religious graffiti on a store room shelf.  In a case of first impression, the Appellate Court considered the entitlement of a worker to temporary disability pay or temporary partial disability pay where he was working under light duty restrictions but fired for an unrelated cause.  Interstate Scaffolding v. Workers Compensation Commission (Oct. 20, 2008, 3rd Dist. App.)

There the Arbitrator denied benefits after the termination. The Commission however, reversed and awarded benefits focusing in on the fact that the injury had not yet stabilized nor reached MMI, so they awarded the temporary disability benefits while the worker was still temporarily disabled from his regular job.

The Appellate Court looked to Professor Larson on Workers Compensation Law (see Larson's Worker's Compensation Law § 84.04D Physical Incapacity -- Plus Employee's Misconduct, at 84-17 (2007). Under prior Illinois law, the right to ongoing disability after leaving light duty employment centered on whether the departure from the employment was voluntary on the workers part or involuntary due to disability.

In reviewing cases from other jurisdictions provided by Larson's, the Interstate Court noted that some jurisdictions deny compensation where the disability played no part in the discharge citing Palmer v. Alliance 917 So.2d 510, 514 (L.A. Ct. App.2005) and Calvert v. General Motors, 327 N.W.2d 542.546 (Mich. Ct. App. 1982) holding an employee discharged for "just cause" is not entitled to ongoing disability benefits.

Other jurisdictions were noted to uphold the right to collect benefits after a firing while on light duty only if the employee could prove that the inability to find other employment is related to the job injury disability itself, citing Cunningham v. Atlantic, 901 A.2d 956 (N.J. Super.Ct. App. Div. 2006) and Marsolek v. Hormel, 438 N.W.2d 922, 924 (Minn.1989) (that a justifiable discharge for misconduct suspends the rights to compensation unless the cause of the employee's inability to find other suitable employment is related to the work injury disability).

In Interstate, the Illinois Appellate Court said that there was no evidence that the employer terminated the worker merely to avoid paying disability benefits, but rather that the worker's own volitional conduct in defacing company property was the real cause for proper discharge and that he would have continued to have received benefits until he medically stabilized but for his own conduct. Accordingly temporary benefits after termination were denied.

Contrast this decision with recent Illinois Commission decision in Wleklinski v Kelly Services (08 IWCC 254, March 2008) where a temporary worker at RR Donnelly suffered a wrist sprain accident on 11/14/06 with immediate notice and immediate medical care. The employer terminated the worker for leaving her machine early and failing to punch out the day of the accident. The employer refused to pay any temporary disability benefits claiming a valid termination and failed to provide any suitable light duty work. The arbitrator awarded temporary disability benefits and a total of $7,616.07 in penalties and attorneys fees stating that merely severing the employment relationship was not sufficient to sever the employer's obligation to provide ongoing temporary total benefits for an undisputed accident.

In Sapp v Wal-Mart (06 IWCC 459, May 2006) a 37 year old cashier had an uncontested low back injury lifting a fan into a shopping cart. She was subsequently terminated for absenteeism while on light duty. The arbitrator denied benefits after the termination but the Commission reversed and awarded temporary benefits. The Commission focused on the test for determining ongoing entitlement to disability benefits following the termination as whether the medical condition had reached Maximum Medical Improvement and not just whether the cashier was capable of working light duty. Accordingly, the Commission awarded temporary disability benefits following the termination.

As well, the Illinois Commission had previously decided Alicea v. Sysco (06 IWCC 596, July 2006), wherein a 42 year old working for Sysco Food Services injured his right shoulder in an undisputed accident and underwent surgery for a shoulder dislocation but the employer previously fired him for violation of a safety rule during the accident. The employer denied benefits entirely during a light duty release to return to work arguing that the violation of safety rule barred the right to temporary disability benefits altogether. The Arbitrator held and the Commission affirmed that the termination based upon the safety rule violation did not entirely remove the worker from the sphere of employment and did not bar entitlement to temporary disability benefits.

The factors for denying benefits following termination while on light duty restrictions would seem to turn on (1) whether the medical condition is currently still temporary in nature and not yet reaching MMI and (2) whether the termination was based on some voluntary act of the worker and (3) whether the work injury disability after termination then physically precludes the availability of suitable alternate employment. Consultation with an Illinois workers comp attorney is advised if you have a case involving light duty and a termination from employment while still under restrictions and under active medical care. 

 © Copyright 2008 by Brad Bleakney. All rights reserved. Reprinted by permission. This blog originally appeared on Illinois Workers Compensation Blog, published by Brad Bleakney, Bleakney & Troiani, Work Comp Chicago, LLC.