Will an “economic layoff” be a solid defense against payment of temporary disability benefits where a carpenter worked for over 2 years following a shoulder injury? The answer is no – that is, as long as the worker is still under medical care and is still “temporarily” disabled from his regular employment.
In Residential Carpentry (May 8, 2009, 3rd Dist.) the Appellate Court confirmed an award of penalties for nonpayment of TTD following a layoff and for the unreasonable refusal of the employer to authorize payment of ½ of a shoulder surgery.
Tibbitts was a union carpenter injured while lifting a 100 lb. staircase for installation in October of 2003. Following conservative care, his doctors recommended rotator cuff repair, decompression and possible clavicle resection. The employer obtained an IME exam by their doctor and agreed that the rotator cuff tear was related but not the degenerative arthritic spurs in his shoulder which necessitated the decompression and clavicle resection. So, the employer only authorized ½ of a shoulder surgery.
Since Tibbitts couldn’t get the other ½ of his shoulder surgery approved, he continued working. In June of 2004, Tibbitts reinjured the same shoulder again lifting stairs for installation. Tibbitts continued his work for the employer as a carpenter but under light duty restrictions for 17 months from June of 2004 until his layoff in December of 2005. His employer ultimately “laid him off” and said they no longer had any work for him because they were “not busy”. Although Tibbits sought work with 15 or 20 other contractors following the layoff, he could not find work within his restrictions. The company denied his disability benefits because they argued he was out of work due to economic reasons rather than due to medical reasons.
Our Appellate Court held that despite his lengthy and continued light duty work, the Commission was not prevented from finding Tibbits temporarily disabled. The mere fact that a worker is capable of some light duty work does not prevent an award of TTD. A worker is entitled to “temporary” disability benefits up until the time he is recovered to the maximum extent possible given his injury. That term is commonly called maximum medical improvement or MMI. Once an injury stabilizes to the maximum extent possible, an employee is no longer entitled to “temporary” disability. Here, Tibbitts was still under the doctor’s care and still waiting for his surgery so the court confirmed the award of benefits with attorneys’ fees and penalties.
Typically, a good faith challenge to liability for benefits will not subject an employer to penalties under the Illinois Workers Compensation Act but, the employer bears the burden of showing that the denial of benefits was reasonable. The law clearly provides that an aggravation of preexisting condition is compensable under the Act. Here, the court found it unreasonable to deny ½ the surgery where it was clearly contrary to how it would normally be treated. To try to have the doctors perform only ½ a surgery for a rotator cuff tear but not take care of the impingement or the degenerative arthritic spurring while they were in there was found clearly not medically reasonable.
© Copyright 2009 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.