Synopsis: Undisputed Retirement Ends Entitlement to Temporary Total Disability in Illinois Workers’ Comp—Big Win by Jim Egan, J.D.
Editor’s comment: In a case tried and argued on appeal by KCB&A partner Jim Egan, J.D., the Illinois Appellate Court, WC Division ruled a municipal worker wasn't entitled to temporary total disability benefits after he voluntarily retired from his job, nor was he entitled to permanent total disability benefits because he failed to prove his inability to work.
In a decision published on February 27, 2015, the Court in Sharwarko v. Illinois Workers' Compensation Commission, No. 12-L-51346 carved out what may be an exception to Interstate Scaffolding, a decision that has vexed the defense industry. The Court also affirmed prior decisions that in order to attain “odd-lot” permanent total benefits a claimant must show diligent but unsuccessful attempts to find work or by showing he/she will not be regularly employed in a well-know branch of the labor market because of age, skills, training and work history.
Petitioner Sharwarko worked for the Village of Oak Lawn as a water and sewer inspector. He injured himself when he banged his elbow against a concrete wall while installing a water meter in April 2006.Petitioner was diagnosed with right median and ulnar nerve neuropraxia. While undergoing physical therapy Sharwarko was given medical restrictions on use of his right hand, which the Village accommodated. After conservative treatment failed Petitioner underwent a right carpal tunnel release and a right cubital tunnel release in August 2006. He was again to return to work, subject to restrictions on use of his right hand, in late September. The following month, in response to an offer which was made to all employees, Petitioner elected an early retirement in October/November. The Village paid him temporary total disability benefits from the date of his surgery, until the date of his retirement. Sharwarko continued to receive medical treatment after his retirement, and he continued to complain of pain. He underwent a second surgery in May 2007, but he continued to report pain, tingling and numbness. Doctors placed him at maximum medical improvement in August 2011.
An Arbitrator found Sharwarko suffered an injury to his right elbow and ulnar nerve in April 2006, which entitled him to 188-3/7 weeks of temporary total disability benefits. The Arbitrator also awarded him permanent partial disability benefits for an 80% permanent loss of use of his right arm. The parties filed mutual appeals, the Village asking for reversal of the TTD award, Petitioner seeking reversal of the permanency award and other issues. The Workers' Compensation Commission modified the arbitrator's decision by reducing the Sharwarko's TTD award to 10 2/7 weeks of benefits – having them end on the date Sharwarko retired. The Circuit Court confirmed the Commission's decision.
The Appellate Court held that by retiring, Sharwarko had told the Village he had no intention of returning to the workforce. The Court agreed with the Commission's finding that his retirement was the equivalent of refusing the accommodated duty which the village had provided before his first surgery and it had said it was willing to continue to provide. The Court also said it agreed Sharwarko wasn't permanently and totally disabled. Although his vocational expert opined that Sharwarko wouldn't be regularly employable in any well-known branch of the labor market, the Court said the Commission didn't need to accept this opinion just because the Village didn't present a vocational expert of its own.
Much of this decision was based upon manifest weight of the evidence and isn’t a true “legal” ruling. Petitioner failed to provide evidence that he was taken off work by any of his doctors after his early retirement and because they failed to provide any job search after he was placed at MMI. Petitioner’s counsel relied upon one doctor who took Petitioner off all work. The Appellate Court ruled the Commission’s decision’s were not against the manifest weight of the evidence. The Court further held the Commission’s decision to rely upon the opinions of at least three other doctors who opined Petitioner could work with limited use of the right arm/hand as well as the testimony of the employer that work was available within the restrictions, had Sharwarko not retired.
The decision on TTD is actually a very narrow exception. It is not often an employer can offer its’ entire work force an early retirement option and there was no evidence offered that Petitioner was held off work at any time after the retirement. It is very likely some TTD would have been awarded. Regarding odd-lot PTD benefits the decision was instructive on both sides of the bar. Respondent employers have to be able to show through testimony and vocational reports/job studies that work is/was available. Petitioners cannot just roll out a vocational assessment that does not consider all of the medical evidence and does not consider a job search at all.
We applaud the Court’s ruling as a common sense approach to these simple facts. This article was researched and written by Jim Egan, J.D. He can be reached at firstname.lastname@example.org.
Synopsis: Whole Lotta Shaking Goin’ On In Springfield and Elsewhere in State Pensions and Workers’ Comp This Week.
Editor’s comment: Here are a myriad of concerns for Illinoisans from our State Capitol.
First, on Wednesday, the IL Supreme Court is going to hear debate on three of the five IL State fake pension programs. If you aren’t sure, Illinois has a miserable worst-in-the-country credit rating because our State leaders have borrowed over $110B, yes Billion to keep up with the lavish fake pensions and lifetime taxpayer-funded healthcare money for anyone lucky enough to get vested in these three state fake pension plans.
We caution our readers to also note nothing, absolutely nothing is being done about the legislative or judicial fake pension plans. These two plans provide insanely-high lottery-winning-level benefits to the participants who don’t have to contribute even one year’s pay to then get all their contributions back in a year and actually will get more fake pension money annually than they made while working. To our readers who complain the State didn’t “fund” the pensions as promised, we assert the pensions can’t be fully funded due to the huge amounts of money needed to provide the benefits to which judges and legislators are entitled.
· If you think we are making this up, please understand Judy Baar Topinka, may she rest in peace, was a state legislator for only six years. Her highest salary was $60K. When she passed, she was receiving $150K a year from that fake pension plan—how can you possibly contribute enough money to annually pay someone 2-1/2 times their highest salary with annual increases for life? If Judy has lived to 90, she would have gotten around $4M from IL taxpayers in return for her total fake pension contribution of about $36K.
· Judges/justices get a similar deal. They can retire after only nine years. They make $203K a year and would first get around $170K from the fake pension annually with 3% compounded increases—in less than five years, they would get more than they made when they were working. Lots of judges and justices are starting to note there is no reason to endure the stress and continue to sit behind the bench after they are vested. We feel the cost to IL taxpayers to fully fund judicial fake pensions would require annual fake pension contributions for each judge of about $400-500K a year—this would be over and above an annual salary that pays judges more than our Governor. They can receive $9M over their lifetimes for just nine years of wearing their robes—if you want that math, send a reply. We again emphasize this fake pension and the legislative fake pension aren’t being reformed or debated on Wednesday.
Please always remember the “pension clause” protecting fake pensions in Illinois that will be debated on Wednesday is a “stick-it-to-the-taxpayer” clause that puts you and me and everyone who pays taxes on the hook for the fake pensions. No one thought to pass a “taxpayer-protection” clause requiring our corrupt politicians to fund the fake pensions from actual income and not borrow billions to now have to demand “the wealthy” pay higher taxes to cover all of it. We are mildly shocked to hear “the wealthy” don’t want to pay millions in new taxes for legislators and judges who won’t contribute anything close to a fair share and are also doing fairly well financially.
Switching gears, we saw several articles out on the web that are now being debated in Springfield. An organization named ProPublica and NPR are presenting a whiny new series with “real-life stories” about injured workers in North Dakota and Oklahoma they assert were mistreated by their state’s WC comp system. If you want the link for the series, send a reply. What we dislike about the series is the implicit extrapolation of the problems of these workers to every injured worker in the rest of the country. Another recent and similarly whiny study is from OSHA where they claim, among other things that 80% of workers’ comp costs aren’t paid by business or insurance carriers, the injured workers have to go on the dole and taxpayers have to pick up the costs. If you want a link for the OSHA article, send a reply. In our view, the OSHA article publishes similar logical fallacies as the ProPublica/NPR thesis—they pose the theory that if one worker got a poor claims outcome, thousands of workers much be in the same situation.
We were advised there are Illinois House hearings and testimony will be taken from various sources this week about the IL WC reforms of 2011. If any of our readers want our summary of the impact of those changes, send a reply and we are happy to forward them. At present, we don’t see a strong chance there will be 2015 legislative changes but we are sure the business community will keep pushing to “reverse” the controversial decisions by the IL Supreme Court and Appellate Court in Interstate Scaffolding and Forest Preserve District of Will County. We feel there is a much stronger chance for new IWCC Chair Fratianni-Atsaves and the other Commissioners to keep making progress in making IL WC claims move more fluidly through the system and insure reasonable and fair benefits are provided to injured workers while keeping a sharp eye out for WC fraud.
While the IL House and Senate are at it, we assure our readers the ruling we reviewed last week by the IL Appellate Court, WC Division in Nee v. IWCC has to be given legislative consideration. In this ruling, the employee was provided “traveling employee” status from his actions in walking across a city street and stepping over a curb when Claimant Nee hurt his knee. This “activist” ruling implicitly reverses every fall down denial in IL WC history because everyone who falls down is also typically walking. It also covers such “travelers” for personal actions, like sitting in a restaurant on a break and spilling hot coffee on themselves. In our respectful view, the decision can’t be made to make sense—a worker doesn’t take on “traveling employee” status when they are walking to then magically lose that legal status when they stop walking or sit down. Either way, the term “traveling employee” isn’t in the IL WC Act and maybe it should be more specifically defined, as the Florida legislature did.
On another front, we were advised by a reliable source long-time Chicago Alderman Ed Burke still will not allow City of Chicago workers to return to work at light duty. This obvious instance of what we feel is WC claims mismanagement is causing the City to have to pay millions upon millions in wage loss differential settlements. There is literally no conceivable reason not to bring workers back to work at the earliest opportunity. We assume Alderman Burke and the other members of the City Council are going to want to “tax the wealthy” which appears to be the constant mantra to cover-up government fumbling and kleptocracy.
We appreciate your thoughts and comments. Please feel free to post them on our award-winning blog.
Synopsis: Employers Can and Should Screen for Pot. We Consider This a Workers’ Comp No-brainer, Folks.
Editor’s comment: We saw an article in the Chicago Tribune from Gina Tron titled Employers Should Stop Screening for Pot. We want to be sure to advise our readers this article is wishful thinking and doesn’t match up with the risks you will face by allowing your workers to use pot in your workplace.
Our main concerns are safety, safety and more safety. If you allow your workers to start using medicinal marijuana they are a health and safety risk to themselves and those around them. Illinois law is the same with respect to employees who are injured while under the influence of drugs as it is for those employees who under the influence of alcohol. In 2009, the Appellate Court, Third District upheld a compensation award for an employee who had marijuana in his system. In Lenny Szarek, Inc. v. Illinois Workers’ Compensation Comm’n, Petitioner filed a claim pursuant to the Workers’ Compensation Act alleging he was injured while employed by Szarek, Inc. Petitioner was working as an apprentice carpenter for Szarek when he fell through a 9 x 9 foot hole in the middle of the floor. He fell two stories to the basement level and is now a paraplegic.
While being treated at the hospital, Claimant’s urine was tested with results showing cannabis. He admitted prior use of drugs, but denied any recent use. The defense retained an expert to review the medical records and testify as to the petitioner’s possible intoxication at the time of the accident. The expert testified the amount of cannabis in Daniel’s system was “consistent with impairment due to marijuana.” The expert also testified cannabis intoxication would result in visual deficits, perceptional abnormalities, coordination problems, impaired judgment and increased reaction time. In his ultimate opinion, the expert testified the use of the cannabis “might or could” have caused Daniel’s fall due to the vision and reaction changes attributable to marijuana intoxication. The medical expert testified marijuana intoxication definitely caused an increased risk of injury.
This worker was born in 1980 and is 35 years of age. He might live another 50 years so the total and permanent award could go well into seven figures. He received over $200K in medical care, as part of the award—medical care and other duragble medical equipment could also be in the millions. There are other published IL WC rulings involving deaths and serious injuries due to marijuana use in the workplace—if you want more, send a reply. No safety manager should incur such risk when it can be easily avoided by acting now.
In our view the only way to minimize this exposure is to start an Alcohol and Drug-Free Workplace program asap. Don’t take anything for granted and take a million dollar risk. We have a free program for our readers—if you want it, simply send a reply.
Synopsis: Come to Dallas with KCB&A for Hoops for Hope at the Rustic on March 26, 2015.
Editor’s comment: We are one of the sponsors for this great event—if you have interest, please send a reply.
Hoops for Hope - Dallas
Join your industry colleagues at your local 2015 NCAA Men's Basketball post season networking fundraiser! Admission includes access to the appetizer buffet, beverages and the chance to win some incredible prizes in support of City of Hope’s innovative research and treatment programs. We are expecting 150+ industry members to gather for this fun event at each location – Los Angeles, San Francisco, Des Moines, Philadelphia and, NEW for 2015, Dallas, TX!
March 26, 2015 - Sweet Sixteen
5 - 9:30 P.M.