One of the most controversial Illinois Supreme Court opinions regarding Workers’ Compensation is Interstate Scaffolding v. Illinois Workers Compensation Commission, 358 Ill.App.3d 1040 (2008). In Scaffolding, an injured worker, in an accepted case, was back working on accommodated light duty restrictions. An argument arose between the worker and his employer regarding his pay. The injured worker in anger over the dispute, took matters into his own hands and vandalized company property and was caught. He was terminated from employment immediately. What did the clever attorney for the injured worker do? He demanded the immediate payment of weekly temporary total disability benefits be paid to his client. It is now obvious why the case made it to the Illinois Supreme Court, which is a rarity.
What did the Supreme Court do? They told the employer’s carrier to pay the injured worker just as his lawyer had suggested. Why? First, the Court undertook a thorough and detailed investigation into the Act itself. They did so of course hoping that within the four corners of the Act, the question would be addressed. It was not. The Court used this absence to reach its holding, reasoning that since the Act was silent, the commonly accepted rules regarding payments of benefits applied. Those rules in Illinois are that temporary weekly benefits are due until a time that the injured worker’s condition had stabilized as long as the case is accepted and the injured worker has either a valid off-work note from his physician or light duty restrictions from his physician which cannot be accommodated by the employer.
This decision changed the landscape of Workers’ Compensation in Illinois, as before the decision, practitioners almost universally accepted amongst themselves that a termination for cause precluded weekly benefits going forward. I was at the first docket in my region after the decision and the docket was abuzz with conversations between the attorneys. Of course, injured workers attorneys like myself, lauded the courage of the Supreme Court’s strict review of the statute, because quite frankly, we liked the outcome. Our opponents representing employers were beside themselves with the Court and cried foul. Another decision from a pro-worker Court had been sent down from Mt. Olympus to their viewing.
To bolster their disdain for the decision, counsel for employers, almost in a hive mind, were making various versions of this slippery slope argument, that if Scaffolding is to remain the law of the land, what happens when an injured worker shoots his boss? What happens when he steals merchandise? What happens when….insert horrible act. In fact these arguments make sense.
In Illinois we tend to only have the legislative stomach to reform about once every five years or so. There was a major reform in 2011 and the Scaffolding “problem” was pushed to the sideline and no amendment was made to the Act regarding termination for cause and its affect on weekly benefits. We had bigger issues like causation standards to grapple over. The proverbial “can” was kicked down the road. It is however only a matter of time before one of these “horrible” fact patterns occurs.
What is the answer? Should the legislature carve out some kind of felony exception to receiving weekly benefits? What would that look like? Where will the bright line be? Enforcement would certainly be an issue. How far is too far to protect the bargain? Only time will tell. Stay tuned, because as most commentators would agree, there is no place like Illinois for the law and politics.
Jason Caraway