5-24-09
Is that possible to receive more than lifetime total disability benefits in Illinois from a single accident? Answer: Yes -- it is possible, but it won’t happen very often.
In Beelman Trucking, (May 21, 2009, Ill. Supreme Ct.) an injured worker received lifetime total disability benefits for the complete paralysis of both legs and he also received an award for the amputation or loss of use of both arms. In Beelman, the employer argued that a worker cannot be more than totally and permanently disabled. The employer argued that the Illinois Workers Compensation Act puts a cap on the benefits available at lifetime permanent total disability benefits. (A lifetime award would normally be at 2/3 of his regular pay for life) The employer argued that a worker cannot possibly be more than totally and permanently disabled in a single work accident.
14 years after a tragic truck accident, a truck driver, Jack Carson, was allowed by the Illinois Supreme Court to keep an award for the loss of both his arms as well as a lifetime pension for paralysis of both his legs.
There is no dispute that an injured worker in Illinois can receive lifetime disability benefits for the loss of 2 arms, 2 hands, 2 legs, 2 feet, 2 eyes or any combination thereof under Section 18(e)(18). The question was whether Carson could keep an additional award of 235 weeks for paralysis of his left arm and an extra 300 weeks compensation for amputation of his right arm on top of the lifetime benefits already awarded.
Illinois essentially recognizes 3 types of permanent and total disability pensions. Lifetime disability benefits are available for those (1) that are “obviously unemployable” because they are wholly and permanently incapable of work, or (2) for someone capable of limited work but they are damaged to the point that there is no stable labor market anymore for a person of like age, training and physical limitations known as “odd-lot” permanent total disability pension and (3) in the case of someone eligible by statute for total disability pension for the amputation or loss of use of 2 arms, 2 hands, 2 legs, 2 feet, 2 eyes or any combination thereof known as a “statutory” permanent total disability.
It is contemplated that someone with a “statutory” total disability pension may eventually even return to work earning some wages but the disability pension is awarded by law for the severe nature of the injuries.
Under the first two disability pensions, a worker cannot receive money by adding up the % of each body part on top of the total disability pension. Under the third type of disability pension, the “statutory” total disability pension involving amputations, it is possible to obtain additional awards for losses on top of the total disability pension.
As a good example, in Freeman United Coal (1984) 99 ILL.2d 487, a coal miner on a “statutory” total disability pension was allowed to receive an additional award for other injuries he received following a second work accident. The difference in Beelman now is that the Supreme Court recognizes an award for injuries on top of the “statutory” disability pension arising out of the same accident rather than requiring a new, second and separate accident at work.
Chicago Workers Compensation Attorney – http://wc-chicago.com -- 5-24-09
5/23/2009
Temporary Disability Benefits Following “Economic Layoff"
5-23-09
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.
Chicago Workers Compensation Attorney ---- http://WC-Chicago.com/ -- 5-23-09
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.
Chicago Workers Compensation Attorney ---- http://WC-Chicago.com/ -- 5-23-09
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