Friday, March 6, 2015

No sanctions for stopping TTD at retirement.

An Illinois commission denied sanctions against an employer when it terminated a worker's TTD benefits after he retired from work, even though he continued to treat after retirement for his arm.  Sharwarko v Ill. Worker's Compensation Commission, 2015 Ill App. Lexis 128 (Feb. 27, 2015).

The case involves a worker who hit his right elbow against a wall in 2006.  He underwent releases of the right carpal and cubital tunnel in August 2006.  Claimant stated his symptoms became worse after the surgery.  A re-evaluation in 2007 showed the ulnar condition had become worse after the surgery and he underwent a second surgery to remove an obstructive neuroma.  He was found at MMI about 3 years later and sustained an 80% loss in the use of his arm.  He failed to establish the accident rendered him totally disabled. 

The court noted that claimant had not looked for work, the employer had accommodated work with one-hand restrictions leading up to his resignation (and had a history of accommodating other employees), and that claimant's only expert conceded that claimant might be able to work with one-handed restrictions.  Although claimant may have unable to do any work after the surgery, the record lacked sufficient records to support such an award. 

"The arbitrator noted that the termination of the claimant's TTD benefits on the day of his retirement came before the supreme court's decision in Interstate Scaffolding and was based upon a reasonable interpretation of the law existing at that time. For its part, the Commission  denied the claimant's request for an award of penalties and attorney fees because it determined that the claimant's entitlement to TTD benefits ended when he voluntarily retired on October 31, 2006."

Interstate Scaffolding v the Illinois Workers Compensation Commission, 2010 Ill Lexis 12 (IL 2010) awarded ongoing TTD for a period of time after a worker was discharged for misconduct and considered the dispositive issue was whether claimant was at MMI.