TTD and Employment Status: One View of the Post- Interstate Scaffolding Landscape
The Illinois Workers’ Compensation Commission recently affirmed an arbitrator’s denial of TTD benefits to a petitioner who was on light duty work restrictions during an economic layoff. In Gonzalez v. ITT Industries, 2009 WL 5067488 (Ill. W.C. Comm. 2009), the petitioner injured his back after lifting a 200 pound box and his chiropractor placed him on light duty work restrictions for approximately four months. During those months, the employer temporarily laid off a number of employees, including the petitioner. The petitioner expected a call back to work during the time of his lay off and did not pursue work during that period of time. He accepted unemployment insurance benefits, expecting to be returned to work when economic conditions improved. He and his co-workers were equally impacted by the fact that the plant was closed due to an economic downturn.
The arbitrator denied TTD since the petitioner, as well as his fellow co-workers, were simply waiting for a return to work after the layoff period ended. The arbitrator reasoned that the petitioner was not disadvantaged due to his physical disability since neither he, nor his co-workers, contemplated a search for new employment. Rather, the employees subject to the economic layoff were simply waiting for a call from the employer to return to work after the end of the layoff period. The Commission affirmed the arbitrator’s decision, noting that neither the petitioner, nor his co-workers, had envisioned a pursuit of work with new employers, and that all parties were merely awaiting the recall to the ITT location.
We note that the decision in Gonzalez preceded the newly established rules of Interstate Scaffolding v. IWCC by three months (see our blog post below for a full analysis of Interstate Scaffolding). Remember that the Supreme Court found no reasonable construction of the Act that supported the termination of TTD to an employee on light duty who was discharged for his own volitional conduct. The controlling factor there, as the Supreme Court wrote, was that an employer is liable for the payment of TTD subsequent to an employee’s termination until the employee reaches maximum medical improvement.
Gonzalez seems to run counter to Interstate. If the Commission were to follow the reasoning in Interstate, Mr. Gonzalez would have been entitled to TTD since he had not yet reached maximum medical improvement and was placed on light duty restrictions that the respondent could not accommodate due to the economic layoff. Clearly, greater weight would be given to the Supreme Court opinion in Interstate over the Commission’s decision in Gonzalez. However, a respondent could arguably glean from Gonzalez that during an evenly applied economic layoff, where both an injured employee and his fellow co-workers expected to be recalled to work, a respondent may be able to avoid the payment of TTD.
If an employer is forced to apply an evenhanded economic layoff and there is an expectation that the layoff is temporary, an injured employee may not be entitled to TTD since he is not disadvantaged by his disability as compared to fellow co-workers who are also awaiting a call back to work from the employer. However, it is unclear whether this legal theory would be upheld in light of Interstate.